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School Law Updates

2007

 

Below are updates previously posted and distributed in 2007.

 

Personnel - Dismissal:  A board's delayed tenure decision does not create a continuing violation that extends the statute of limitations for filing a lawsuit.   Hicks v. Wake County Bd. of Educ. (N.C.App. 12/4/07)

 

Vonnie Hicks, a previously tenured North Carolina teacher, was hired by the Wake County Schools in August 1999.  In his employment application, Hicks failed to indicate that he had previously acquired tenure in the Winston-Salem/Forsythe County School System.  The applicable Tenure Act provision in effect at that time required a board to vote on tenure for a previously tenured teacher within two years. [The Tenure Act now only requires a one-year period for such teachers.]    Because of the oversight, Hicks was treated as a regular probationary teacher subject to the normal four-year probationary period.  The board eventually awarded him tenure in 2003, within four years of his hire.  Under the Tenure Act, a teacher is entitled to one month's additional pay for each month a board fails to vote beyond the June 15 notification deadline.  Consequently, Hicks sued the system on June 15, 2005 for breach of contract and violation of the Tenure Act.  He claimed the delay should be treated as a continuing violation, thus the statute of limitations for filing suit did not begin until he was finally granted tenure in 2003. 

 

The superior court rejected this argument, ruling that the statute of limitations began to run on June 16, 2001, the day after the board should have voted following his two-year probationary period.  The delay, reasoned the court, was not a continuing violation, but the continuing effect of a single prior violation.  The Court of Appeals affirmed this ruling.  (The court also ruled that the case was governed by a 3-year statute of limitations, not a 2-year statute as applied by the superior court; however, the extra year did change the result.)  

 

Practice Points: 

á    Confirm the correct status of new teachers and other important information.  In this case, though the error was Hick's fault, a careful background check may have revealed it, avoiding expensive litigation to resolve a defensible position.

á    The Court's common-sense interpretation of the Tenure Act helps limit schools' liability in such matters.

 

 

Personnel - Dismissal:  Employee procedural due process does not require detailed notice of such details as potential disciplinary consequences when post-termination procedures allow sufficient opportunity to be heard.

Curtis v. Montgomery Co. Public Schools (4th Cir., 7/24/07; unpublished)

 

Curtis was an instructional assistant and student mentor with the Montgomery County Schools in Maryland allegedly engaged in improper relationships with students he had invited to his home.  School officials initiated an investigation, placed him on leave of absence pending a final determination.    In doing so, they notified him of the charges.  During the investigation, officials interviewed Curtis and he responded to a list of questions.   When officials concluded the allegations were true, Curtis was dismissed, receiving a letter, which provided explanation for the action and his appeal remedies.  He was allowed separate hearings by two different officials and he chose not to pursue a third hearing.  

 

Curtis sued, claiming he should have been notified when the investigation first began that dismissal was a possible consequence.   The court rejected this argument, ruling that the Fourteenth Amendment due process clause only requires notice of the action being taken, and explanation, and the opportunity to be heard.  In other words, "detailed pre-termination notice of the possible range of proposed disciplinary actions" is not required.

 

Read the case: http://altlaw.org/v1/cases/178884.pdf

 

Students - Special Education:  School districts are bound by the educational goals and benchmarks articulated in an IEP, not by discussions and proposals made at an IEP meeting.  Avijan v. West (4th Cir., 7/12/07).

 

The Fourth Circuit Court of Appeals has held that when there is a discrepancy between what parents believe was said at an IEP meeting and between the plain terms of the IEP, the school's obligations to the child are limited to the requirements articulated in the IEP.

 

During an IEP meeting, the parents of an emotionally disabled child proposed a residential treatment placement.  The IEP team concluded that residential treatment was unnecessary to meet the child's educational needs, however, and decided on a private day program instead.  This choice was articulated in the child's IEP, which was signed by both the Avijans.  Members of the IEP team nevertheless recommended a residential treatment facility for the parents to consider.  No mention was made at the meeting as to who would bear the costs if the parents chose to place their child in residential treatment.

 

The parents chose to place their child in residential treatment to supplement the private day program.  Believing that the school had agreed to pay the costs of the residential placement, they sent the school the bill, which amounted to $571 per day.  The school maintained that it was only obliged to pay the costs of the private day program and refused to pay the costs of residential treatment.

 

After losing a due process hearing, the parents appealed.  They argued that the school had agreed to fund a residential placement in the IEP meeting.  The court rejected this argument and concluded that the plain terms of the IEP stated that a private day program, not residential treatment, was the appropriate placement to meet the child's educational needs.  Because the court must generally examine only the terms of the IEP itself, not comments made in the IEP meeting or otherwise, it refused to examine what was said at the IEP meeting.

 

 

Students - Safety: A pocketknife is a prohibited weapon under North Carolina law.  In re B.N.S. (N.C. App. 3/6/07, unpublished)

 

North Carolina Court of Appeals has said that a pocketknife is a "weapon" within the meaning of a North Carolina statute that prohibits the carrying of weapons on educational property, including "any sharp-pointed or edged instrument.".  At issue in the case was a student who was prosecuted and convicted as a juvenile offender for bringing a closed pocketknife onto school grounds.  The student challenged the conviction, arguing that the statute did not list a pocketknife as one of the prohibited items.  The trial court and court of appeals agreed that the purpose of the statute was to promote safety on school grounds and that, as such, the legislature reasonably meant to prohibit pocket knives, even if they were not explicitly listed.

 

Read the case: http://www.aoc.state.nc.us/www/public/coa/opinions/2007/060585-1.htm

 

Judicial Procedure - Judicial Deference:  A court, when interpreting a statute, may consider the State Board of Education's expertise and prior, non-binding interpretations of the law.  Rainey v. North Carolina Department of Public Instruction (N.C., 11/9/07).

 

A career-development coordinator was denied a salary increase by the North Carolina State Board of Education in relation to her national board certification.  At issue in her judicial appeal was whether the superior court may "consider" the State Board's expertise and previous interpretations of the law.  Taking a common sense approach, the North Carolina Supreme Court ruled that a court may, indeed, "give appropriate weight to an Agency's demonstrated expertise and consistency in applying various statutes."  Thus some deference is acceptable even though such agency interpretations are not binding on the court.  The case was remanded for final resolution based on the courts' ruling.

 

Read the case: http://www.aoc.state.nc.us/www/public/sc/opinions/2007/143-07-1.htm

 

 

Operations Â- Fines and Forfeitures:  Judge Manning rules schools entitled to over $700 M from state's Fines and Forfeitures Fund.   

 

Wake County Superior Court Judge Howard Manning has ruled that the State has to pay public schools from $768 million collected in civil penalties and held in the state's Civil Fines and Forfeitures Fund.  A 2005 ruling by the North Carolina Supreme Court awarded the plaintiffs the right to the funds, leaving the amount for further determination.   Still to be decided are exact amounts to be disbursed and to whom - the six school system plaintiffs or all systems in the state - and how much should go into the school technology fund. 

 

Personnel - Dismissal: Trial court refuses to dismiss claims by former teacher allegedly transferred following her pregnancy from a relationship with a male teacher at the same school.

 

According to a recent news article, a teacher in the Gaston County schools may continue her lawsuit against the system.   She alleged that she was transferred to an undesirable position in a low-performing school following an out-of-wedlock relationship with a fellow teacher resulting in her pregnancy. The teacher seeks $20,000 in damages.

 

Read the article: http://www.wral.com/news/state/story/2233575/

(Source: WRAL.com, 12/27/07)

 

Personnel:  Poor performance evaluations are not sufficient to maintain a state law claim for bad faith conduct.   Henning v. Rounds (N.M. App., Nov. 12, 2007)

 

A New Mexico court has ruled that a school district did not breach its obligation under state law to deal in good faith with a teacher.  The teacher had alleged that school officials issued a series of negative evaluations in a bad faith attempt to drive the teacher from her job.  The teacher did not, however, lose any pay or other contractual benefits.  Without any grounds for relief, the court concluded the allegation was not sufficient to state a legal claim.

 Personnel - Harassment:  School not liable for hostile work environment.   Engel v. Rapid City School District (8th Cir., 11/12/07)

 

A school district that suspended an employee for sexual harassment of a co-worker could not be held liable for creating a hostile work environment after the suspended employee returned.  The court ruled that the suspension and the school's written sexual harassment policies and procedures were sufficient to eliminate some of the offending conduct and shield the district from liability.

 

Sexual Harassment: News article addresses prevalent problems of teacher-student sexual relationships and oversight by school officials.

 

A recent news article, summarized as follows, addresses a concerning trends in teacher-student relationships.

 

In Lexington, Nebraska, rumors surfaced for months about a sexual relationship between a 25-year-old teacher and her 13-year-old student.  The superintendent explained that, since the teacher was well-liked, active in extracurricular activities, and had no prior record of misconduct, the school first dealt with the situation "informally."  But by the start of the 2007 school year, the rumors were eventually corroborated.  The day after the principal finally confronted the teacher, the teacher and student fled to Mexico.  Mexican officials found them two days later.  The student reported that he and the teacher had engaged in sexual conduct twice.

 

The incident in Lexington is apparently not isolated.  A recent study found that, between 2001 and 2005, states had taken licensure actions against 2,570 educators for different sex crimes.

 

Several experts urged school administrators to take extra precautions to address this trend.  Drafting school policies that prohibit sexual activity between teachers and students and procedures for reporting and investigation are only a start. School officials must take seriously all reports, even credible rumors of sexual activity between parents and students.  Practical strategies include the following.

 

á    Don't pre-judge the rumors and move beyond "informal" steps: investigate rumors promptly and thoroughly in spite of any prior record of an employee's good performance

á    Remove the teacher from the classroom if necessary.

á    Formally interview the teacher, and as caution dictates, contact parents, supervisors, the school attorney, and law enforcement officials.

á    Look for signs among involved students; the 13-year-old Lexington victim exhibited qualities of a student easily taken advantage of:  he was from a poor family, struggling in school, and had few social relationships.

 

Source:  Raleigh News and Observer (date undetermined)

 

 

Personnel - Discrimination:  Principal's statements are direct evidence of racial discrimination under Title VII.  Taylor v. BoE of Memphis City Schools (6th Cir., 11/1/07).

 

A principal's statement to a minority teacher that the minority teacher was passed over for a supervisory job in favor of a white applicant in order "to maintain racial balance" was direct evidence of discrimination.  The court reasoned that because the principal retained ultimate authority over the employment decision, the principal's statements could serve to directly prove an illicit motive.

 

Students - Negligence:  School could be liable for coach's failure to instruct athlete.  Morales v. Beach City School Dist. (N.Y.A.D. Oct. 18, 2007)

 

A New York appellate court left open the possibility that a school district could be held liable for injuries sustained by an athlete who allegedly was permitted to compete in a varsity sport without proper training from the coach.  The case involved a student who fell over a hurdle during track practice.  The student brought a personal injury action against the school, claiming that the coach had directed him to run hurdles with no instruction as to the proper technique.  The court concluded that the case could go to trial, subjecting the school to potential liability for negligently supervising and training a student in an athletic event.

 

Students - Discipline:  Teacher's use of force on student not excessive.  Peterson v. Baker (11th Cir., Oct. 26, 2007)

 

A teacher's use of corporal punishment was not excessive, the Eleventh Circuit concluded.  At issue was a teacher who grabbed a student by his neck while the student was trying to leave the classroom without permission.  The teacher had asked the student to sit down a number of times, but the student had disobeyed. As a result of the teacher's actions, the student had bruises and red marks on his neck and experienced a temporary loss of breath.  Nevertheless, the court concluded that, in context, the teacher's use of force was not excessive regardless of whether the teacher was motivated by an intent to punish or by self-defense.  To this end, not only had the student repeatedly disobeyed the teacher's demands, but he also was the first to make physical contact by forcing the teacher's hand. 

 

 

Students - Discipline:  Principal not liable for divulging student's sexual orientation to student's mother.  Nguon v. Wolf (C.D. Cal., 10/31/07)

 

A principal did not violate a student's First Amendment rights or California constitutional rights when he divulged to a student's mother private information about the student's sexual orientation.  Although the student had a privacy interest in non-disclosure of her sexual orientation within her home, the principal did not violate that interest because the disclosure was in the context of a school suspension for an inappropriate public display of affection.  As such, the principal had a duty to disclose the context of the suspension to the parent to afford the student full due process rights.

Personnel - Dismissal:  A board's delayed tenure decision does not create a continuing violation that extends the statute of limitations for filing a lawsuit.   Hicks v. Wake County Bd. of Educ. (N.C.App., 12/4/07)

 

Vonnie Hicks, a previously tenured North Carolina teacher, was hired by the Wake County Schools in August 1999.  In his employment application, Hicks failed to indicate that he had previously acquired tenure in the Winston-Salem/Forsythe County School System.  The applicable Tenure Act provision in effect at that time required a board to vote on tenure for a previously tenured teacher within two years. [The Tenure Act now only requires a one-year period for such teachers.]    Because of the oversight, Hicks was treated as a regular probationary teacher subject to the normal four-year probationary period.  The board eventually awarded him tenure in 2003, within four years of his hire.  Under the Tenure Act, a teacher is entitled to one month's additional pay for each month a board fails to vote beyond the June 15 notification deadline.  Consequently, Hicks sued the system on June 15, 2005 for breach of contract and violation of the Tenure Act.  He claimed the delay should be treated as a continuing violation, thus the statute of limitations for filing suit did not begin until he was finally granted tenure in 2003. 

 

The superior court rejected this argument, ruling that the statute of limitations began to run on June 16, 2001, the day after the board should have voted following his two-year probationary period.  The delay, reasoned the court, was not a continuing violation, but the continuing effect of a single prior violation.  The Court of Appeals affirmed this ruling.  (The court also ruled that the case was governed by a 3-year statute of limitations, not a 2-year statute as applied by the superior court; however, the extra year did change the result.)  

 

Practice Points: 

á    Confirm the correct status of new teachers and other important information.  In this case, though the error was Hick's fault, a careful background check may have revealed it, avoiding expensive litigation to resolve a defensible position.

á    The Court's common-sense interpretation of the Tenure Act helps limit schools' liability in such matters.

 

 

Personnel - Dismissal:  Employee procedural due process does not require detailed notice of such details as potential disciplinary consequences when post-termination procedures allow sufficient opportunity to be heard.

Curtis v. Montgomery Co. Public Schools (4th Cir., 7/24/07; unpublished)

Curtis was an instructional assistant and student mentor with the Montgomery County Schools in Maryland allegedly engaged in improper relationships with students he had invited to his home.  School officials initiated an investigation, placed him on leave of absence pending a final determination.    In doing so, they notified him of the charges.  During the investigation, officials interviewed Curtis and he responded to a list of questions.   When officials concluded the allegations were true, Curtis was dismissed, receiving a letter, which provided explanation for the action and his appeal remedies.  He was allowed separate hearings by two different officials and he chose not to pursue a third hearing. 

 

Curtis sued, claiming he should have been notified when the investigation first began that dismissal was a possible consequence.   The court rejected this argument, ruling that the Fourteenth Amendment due process clause only requires notice of the action being taken, and explanation, and the opportunity to be heard.  In other words, "detailed pre-termination notice of the possible range of proposed disciplinary actions" is not required.

 

Read the case: http://altlaw.org/v1/cases/178884.pdf

 

Students - Special Education:  School districts are bound by the educational goals and benchmarks articulated in an IEP, not by discussions and proposals made at an IEP meeting.  Avijan v. West (4th Cir., 7/12/07).

 

The Fourth Circuit Court of Appeals has held that when there is a discrepancy between what parents believe was said at an IEP meeting and between the plain terms of the IEP, the school's obligations to the child are limited to the requirements articulated in the IEP.

 

During an IEP meeting, the parents of an emotionally disabled child proposed a residential treatment placement.  The IEP team concluded that residential treatment was unnecessary to meet the child's educational needs, however, and decided on a private day program instead.  This choice was articulated in the child's IEP, which was signed by both the Avijans.  Members of the IEP team nevertheless recommended a residential treatment facility for the parents to consider.  No mention was made at the meeting as to who would bear the costs if the parents chose to place their child in residential treatment.

 

The parents chose to place their child in residential treatment to supplement the private day program.  Believing that the school had agreed to pay the costs of the residential placement, they sent the school the bill, which amounted to $571 per day.  The school maintained that it was only obliged to pay the costs of the private day program and refused to pay the costs of residential treatment.

 

After losing a due process hearing, the parents appealed.  They argued that the school had agreed to fund a residential placement in the IEP meeting.  The court rejected this argument and concluded that the plain terms of the IEP stated that a private day program, not residential treatment, was the appropriate placement to meet the child's educational needs.  Because the court must generally examine only the terms of the IEP itself, not comments made in the IEP meeting or otherwise, it refused to examine what was said at the IEP meeting.

 

 

Students - Safety: A pocketknife is a prohibited weapon under North Carolina law.  In re B.N.S. (N.C. App. 3/6/07, unpublished)

 

North Carolina Court of Appeals has said that a pocketknife is a "weapon" within the meaning of a North Carolina statute that prohibits the carrying of weapons on educational property, including "any sharp-pointed or edged instrument.".  At issue in the case was a student who was prosecuted and convicted as a juvenile offender for bringing a closed pocketknife onto school grounds.  The student challenged the conviction, arguing that the statute did not list a pocketknife as one of the prohibited items.  The trial court and court of appeals agreed that the purpose of the statute was to promote safety on school grounds and that, as such, the legislature reasonably meant to prohibit pocket knives, even if they were not explicitly listed.

 

Read the case: http://www.aoc.state.nc.us/www/public/coa/opinions/2007/060585-1.htm

 

Judicial Procedure - Judicial Deference:  A court, when interpreting a statute, may consider the State Board of Education's expertise and prior, non-binding interpretations of the law.  Rainey v. North Carolina Department of Public Instruction (N.C., 11/9/07).

 

A career-development coordinator was denied a salary increase by the North Carolina State Board of Education in relation to her national board certification.  At issue in her judicial appeal was whether the superior court may "consider" the State Board's expertise and previous interpretations of the law.  Taking a common sense approach, the North Carolina Supreme Court ruled that a court may, indeed, "give appropriate weight to an Agency's demonstrated expertise and consistency in applying various statutes."  Thus some deference is acceptable even though such agency interpretations are not binding on the court.  The case was remanded for final resolution based on the courts' ruling.

 

Read the case: http://www.aoc.state.nc.us/www/public/sc/opinions/2007/143-07-1.htm

 

 

Operations Â- Fines and Forfeitures:  Judge Manning rules schools entitled to over $700 M from state's Fines and Forfeitures Fund.   

 

Wake County Superior Court Judge Howard Manning has ruled that the State has to pay public schools from $768 million collected in civil penalties and held in the state's Civil Fines and Forfeitures Fund.  A 2005 ruling by the North Carolina Supreme Court awarded the plaintiffs the right to the funds, leaving the amount for further determination.   Still to be decided are exact amounts to be disbursed and to whom - the six school system plaintiffs or all systems in the state - and how much should go into the school technology fund. 

 

Personnel - Dismissal: Trial court refuses to dismiss claims by former teacher allegedly transferred following her pregnancy from a relationship with a male teacher at the same school.

 

According to a recent news article, a teacher in the Gaston County schools may continue her lawsuit against the system.   She alleged that she was transferred to an undesirable position in a low-performing school following an out-of-wedlock relationship with a fellow teacher resulting in her pregnancy. The teacher seeks $20,000 in damages.

 

Read the article: http://www.wral.com/news/state/story/2233575/

(Source: WRAL.com, 12/27/07)

 

Personnel:  Poor performance evaluations are not sufficient to maintain a state law claim for bad faith conduct.   Henning v. Rounds (N.M. App., Nov. 12, 2007)

 

A New Mexico court has ruled that a school district did not breach its obligation under state law to deal in good faith with a teacher.  The teacher had alleged that school officials issued a series of negative evaluations in a bad faith attempt to drive the teacher from her job.  The teacher did not, however, lose any pay or other contractual benefits.  Without any grounds for relief, the court concluded the allegation was not sufficient to state a legal claim.

Personnel - Harassment:  School not liable for hostile work environment.   Engel v. Rapid City School District (8th Cir., 11/12/07)

 

A school district that suspended an employee for sexual harassment of a co-worker could not be held liable for creating a hostile work environment after the suspended employee returned.  The court ruled that the suspension and the school's written sexual harassment policies and procedures were sufficient to eliminate some of the offending conduct and shield the district from liability.

 

Sexual Harassment: News article addresses prevalent problems of teacher-student sexual relationships and oversight by school officials.

 

A recent news article, summarized as follows, addresses a concerning trends in teacher-student relationships.

 

In Lexington, Nebraska, rumors surfaced for months about a sexual relationship between a 25-year-old teacher and her 13-year-old student.  The superintendent explained that, since the teacher was well-liked, active in extracurricular activities, and had no prior record of misconduct, the school first dealt with the situation "informally."  But by the start of the 2007 school year, the rumors were eventually corroborated.  The day after the principal finally confronted the teacher, the teacher and student fled to Mexico.  Mexican officials found them two days later.  The student reported that he and the teacher had engaged in sexual conduct twice.

 

The incident in Lexington is apparently not isolated.  A recent study found that, between 2001 and 2005, states had taken licensure actions against 2,570 educators for different sex crimes.

 

Several experts urged school administrators to take extra precautions to address this trend.  Drafting school policies that prohibit sexual activity between teachers and students and procedures for reporting and investigation are only a start. School officials must take seriously all reports, even credible rumors of sexual activity between parents and students.  Practical strategies include the following.

 

á    Don't pre-judge the rumors and move beyond "informal" steps: investigate rumors promptly and thoroughly in spite of any prior record of an employee's good performance

á    Remove the teacher from the classroom if necessary.

á    Formally interview the teacher, and as caution dictates, contact parents, supervisors, the school attorney, and law enforcement officials.

á    Look for signs among involved students; the 13-year-old Lexington victim exhibited qualities of a student easily taken advantage of:  he was from a poor family, struggling in school, and had few social relationships.

 

Source:  Raleigh News and Observer (date undetermined)

 

 

Personnel - Discrimination:  Principal's statements are direct evidence of racial discrimination under Title VII.  Taylor v. BoE of Memphis City Schools (6th Cir., 11/1/07).

 

A principal's statement to a minority teacher that the minority teacher was passed over for a supervisory job in favor of a white applicant in order "to maintain racial balance" was direct evidence of discrimination.  The court reasoned that because the principal retained ultimate authority over the employment decision, the principal's statements could serve to directly prove an illicit motive.

 

Students - Negligence:  School could be liable for coach's failure to instruct athlete.  Morales v. Beach City School Dist. (N.Y.A.D. Oct. 18, 2007)

 

A New York appellate court left open the possibility that a school district could be held liable for injuries sustained by an athlete who allegedly was permitted to compete in a varsity sport without proper training from the coach.  The case involved a student who fell over a hurdle during track practice.  The student brought a personal injury action against the school, claiming that the coach had directed him to run hurdles with no instruction as to the proper technique.  The court concluded that the case could go to trial, subjecting the school to potential liability for negligently supervising and training a student in an athletic event.

 

Students - Discipline:  Teacher's use of force on student not excessive.  Peterson v. Baker (11th Cir., Oct. 26, 2007)

 

A teacher's use of corporal punishment was not excessive, the Eleventh Circuit concluded.  At issue was a teacher who grabbed a student by his neck while the student was trying to leave the classroom without permission.  The teacher had asked the student to sit down a number of times, but the student had disobeyed. As a result of the teacher's actions, the student had bruises and red marks on his neck and experienced a temporary loss of breath.  Nevertheless, the court concluded that, in context, the teacher's use of force was not excessive regardless of whether the teacher was motivated by an intent to punish or by self-defense.  To this end, not only had the student repeatedly disobeyed the teacher's demands, but he also was the first to make physical contact by forcing the teacher's hand. 

 

 

Students - Discipline:  Principal not liable for divulging student's sexual orientation to student's mother.  Nguon v. Wolf (C.D. Cal., 10/31/07)

 

A principal did not violate a student's First Amendment rights or California constitutional rights when he divulged to a student's mother private information about the student's sexual orientation.  Although the student had a privacy interest in non-disclosure of her sexual orientation within her home, the principal did not violate that interest because the disclosure was in the context of a school suspension for an inappropriate public display of affection.  As such, the principal had a duty to disclose the context of the suspension to the parent to afford the student full due process rights.

 

Employee Free Speech:  Supreme Court Refuses to Hear Appeal of Fourth Circuit Decision Permitting Schools to Regulate Materials Posted on Classroom Bulletin Boards

Lee v. York County School Div. (U.S., 2007)

 

The Supreme Court will not review whether the Fourth Circuit (the federal court with appellate jurisdiction over North Carolina) was correct in ruling that materials posted by a teacher on a classroom bulletin board were curricular in nature and thus not a matter of public concern warranting heightened First Amendment protection.

 

The Fourth Circuit decision in Lee v. York County School involved a Spanish teacher who posted a number of inspirational and informational materials on a bulletin board in the classroom.  Although none of the materials were related to the Spanish curriculum, the Fourth Circuit determined that the bulletin board was a school-sponsored speech item.  The court reasoned that, due to the placement of the bulletin board in the classroom setting and the fact that the principal maintained oversight over what was posted on the board, they bore the imprimatur of the school.  As such, the items were curricular in nature and, under Hazelwood Sch. Dist. v. Kuhlmeier, could be regulated by the school board without violating the First Amendment.

 

The Supreme Court's choice not to review the Fourth Circuit's decision in Lee does not mean that the High Court agreed with the ruling.  However, it does mean that Lee is currently the law in North Carolina and, therefore, school districts may generally regulate the content of materials posted on classroom bulletin boards.

 

Read the Fourth Circuit Decision: http://pacer.ca4.uscourts.gov/opinion.pdf/061363.P.pdf

 

 

Students – Sexual Harassment (Title IX):  High Court Will Not Review UNC-Chapel Hill Sex Discrimination Case

Jennings v. University of North Carolina (US, 2007)

 

The U.S. Supreme Court has declined to review a Title IX sexual discrimination suit decided by the Fourth Circuit Court of Appeal which ruled on a number of significant legal issues.  First, the court held a lawsuit could go forward against a soccer coach who, amongst other things, allegedly used his position to create a hostile and abusive environment for several women soccer players.  The coach had argued unsuccessfully that the action should not be able to go forward because the plaintiff soccer players had not proven that the coach's action had a negative effect on their equal educational opportunities.  Second, the Fourth Circuit held that complaints from team members about the coach's actions were sufficient to put the University of North Carolina on actual notice of a hostile environment.  The university could therefore be held liable if the plaintiff soccer players sufficiently proved their claim.

 

The appeal to the Supreme Court presented a number of important issues, including whether the soccer players' could maintain their sexual discrimination suit on a claim of emotional harm and whether the university could be liable for deliberate indifference to the coach's conduct.

 

Read the Fourth Circuit Decision: http://pacer.ca4.uscourts.gov/opinion.pdf/042447A.P.pdf

 

 

Students – Attendance:  Wake County Challenges Court Ruling Prohibiting the District from Forcing Students to Attend Year-Round Schools.

 

The Wake County School Board has appealed a trial court ruling that prohibits the school district from forcing students to attend a year-round school.   The case arose from Wake County's decision in February to convert 22 traditional calendar schools to a year-round schedule.  The school district made the change to deal with the high influx of students in the district.  A group called Wake CARES challenged the change.  Other groups supporting the Wake schools and participating in the suit are concerned that the ruling will have a broader impact across the state, undermining school efforts to control diversity through school assignment and handcuffing the administration of educational services.

 

Read the article: http://www.newsobserver.com/news/story/721951.html

 

Special Education:  High Court Rules that Schools in the Second Circuit Must Reimburse Parents for Tuition Costs Associated with a Unilateral Private School Placement

Board of Education of the City of New York v. Tom F., No. 06-637 (Oct. 10, 2007)

 

The U.S. Supreme Court upheld a Second Circuit decision which had concluded that, under the IDEA, parents of a student requiring special education services were entitled to tuition reimbursement when they unilaterally placed the student in a private school without first sending the child to public school.   The decision involved a 4-4 split among the justices, which by rule affirms the appeals court decision.  Justice Kennedy recused himself from the case, but it is Court policy not to say why.

 

Due to the importance of the issue and conflicting Circuit Court rulings, it is likely that the Supreme Court will hear another case addressing the same issue – whether or not parents are entitled to reimbursement for private tuition even when they have never placed their child in a public school.   (The defendant school district argued that parents must place their children in public schools first to carry out the main purpose of the IDEA – to facilitate cooperation between parents and the school.)   For now, the state of the law in North Carolina is unclear since the Fourth Circuit has not ruled on the issue.

 

Read the Supreme Court's Opinion: http://www.supremecourtus.gov/opinions/07pdf/06-637.pdf

 

School Discipline:  School Did Not Violate Fourth Amendment with Strip Search

Redding v. Safford Unified Sch. Dist. #1, No. 05-15759 (9th Cir. Sept. 21, 2007)

 

A school district in Arizona did not violate the Fourth Amendment's prohibition against unreasonable searches and seizures when it searched a student for prescription drugs.  After hearing reports that two girls were selling prescription drugs, school officials at Safford Middle School investigated the claims and called the two girls down to the office to conduct a search. After discovering pills on one student, school officials confronted the other and conducted a search of her purse and pockets.  When that search failed to turn up any pills, school officials conducted a strip search, again to no avail.

 

The second student sued the school officials, claiming the search was unreasonable under the Fourth Amendment.  The Ninth Circuit rejected her claim.  It determined that school officials had reasonable grounds to search her because the school officials took steps to investigate the initial reports that she was selling drugs.  The strip search was also permissible in scope, both because schools have a strong interest in protecting students against illegal drug distribution and the search was conducted in a private place.

 

Read the case: http://caselaw.lp.findlaw.com/data2/circs/9th/0515759p.pdf

 

 

Teacher Conduct: High Court Declines to Review Whether Connecticut May Criminalize Sexual Conduct Between Teachers and Students

State v. McKenzie-Adams, 915 A.2d 822 (Conn. 2007)

 

The U.S. Supreme Court has declined to review a Connecticut Supreme Court decision which had affirmed second-degree assault charges against a teacher who had sexual relations with two students who had reached the age of consent.  The teacher in the argued that Connecticut could not criminalize such conduct under the U.S. Constitution because it involves private acts.   The Connecticut Supreme Court rejected this argument, reasoning that even if the US Constitution protects privacy rights, teachers who have sexual relations with students fall outside the zone of protection.

 

Note: the Supreme Court's decision not to review the Connecticut case does not necessarily mean that the High Court thinks the Connecticut court decided the case correctly.

 

Read the Connecticut Case: http://www.jud.state.ct.us/EXTERNAL/supapp/Cases/AROcr/CR281/281CR39.pdf

 

 

Negligence – Liability Waivers: Parents Precluded from Suing on Negligence Claims Against School Liability Waiver.

Krathen v. Sch. Bd. of Monroe County (Fla. App. 3 Dist., Oct. 7, 2007)

 

Parents who signed a release exempting the school from liability for claims associated with their child's athletic participation could not sue a school for negligence, a court in Florida concluded.  The release exempted the school from claims associated with the student's athletic participation due to any negligence arising out of the student's athletic participation.  As such, the negligence claim was dismissed.

 

Lex-IS Note:

* This case is not binding in North Carolina.  The law relating to the validity of waivers in instances like this is not well settled.   It is not clear whether or under what circumstances a waiver of liability would be upheld by North Carolina courts.

* School officials should not assume such waivers provide adequate protection from liability.  As usual, it will depend on all circumstances and requires an attorney's input when drafting or evaluating such waivers. 

* Important factors include the nature of the activity (e.g., is it extra-curricular and voluntary), the type and degree of school culpability, the adequacy of notice regarding risks involved, and the extent to which parents knowingly and voluntarily sign such waivers. 

 

 

Employee Speech: School Restriction on Teacher's In-class Expression of Anti-war Sentiment Allowed to Stand by U.S. Supreme Court

Mayer v. Monroe County Community School Corp. (US, Oct 3, 2007)

 

A student asked a tenured elementary school teacher during a current events discussion whether the teacher participated in political demonstrations.  The teacher explained that she had once "honked for peace" at a demonstration protesting the war in Iraq.   After parents complained, the principal instructed staff not to advocate personal viewpoints in class.   The teacher was eventually discharged and she sued claiming it resulted from the exercise of her free speech rights.  The U.S. Seventh Circuit Court of Appeals held that the teacher had no right to express her view due to the risk of indoctrination and the fact that she was speaking as a school employee subject to its rules.  Balancing her interest in speaking out against a matter of public concern against the school's purpose of providing neutral education, the school's interests prevail.  The U.S. Supreme Court refused to hear the case, thus leaving the Seventh Circuit decision intact.

 

Lex-IS Note:

1.  Legally, courts will balance the community benefit and employee's right to speak on a matter of public concern against a school system's need to restrict the speech to carry out its mission. 

2. Public school employees in North Carolina have very limited First Amendment speech rights in the context of classroom or curricular matters; i.e., when the speech is expressed in the course of the employee's duties or in school-related contexts.  It is likely that our Fourth Circuit Court of Appeals would have ruled similarly.

3.  Administrators are advised to remind faculty about the proper boundaries of personal expression in curricular contexts and to review local policies on the subject.

4. Of course, all staff have the right to express their views on matters of public concern in other non-school, public contexts, subject to the balancing of interests.

 

 

Employee Protection – Assault: Student Guilty of Assault for Pouring Urinal Water in Teacher-Aide's Soda.

In re P.D. (Ariz. App. Div. 1, Sep. 11, 2007)

 

A juvenile student pulled a bottle of urinal water out of a trash can, poured the water into a teacher-aide's soda can, and watched as she drank the water.  In criminal assault proceedings an Arizona state court found that the act of placing water in the soda can was a "touching," which is required to establish an assault under Arizona law.  The court also ruled that no injury was required to claim assault.

 

Lex-IS Note:

1.  Although this case is not binding in North Carolina, it is informative and a good reminder.

2.  In instances like this, staff or school officials occasionally must resort to criminal proceedings to protect themselves if local or civil remedies will not suffice.  It is permissible and, sometimes, advisable, to inform staff of such remedies, while encouraging them to consider all factors to determine the most effective course of action.  School officials should take all responsive and preventive measures feasible to protect employees and communicate to them that their protection is valued.

 

 

School Discipline – Dress Code Policies:  Parents Criticize Flag Ban; School Suspends Policy (September 11, 2007)

 

In response to public outcry, one local school district in North Carolina has lifted a ban on students wearing clothes bearing flags. The policy was initially put in place at a high school where some teens had been wearing flags as gang symbols.  The school, wishing to combat gang-related problems, banned the wearing of any clothing adorning flags.  The ban included clothing that displayed the American flag.  A number of parents openly opposed the ban because they thought it was unpatriotic.  One parent elicited the support of veterans and sympathizers through a series of emails that detailed the ban and asked for help to overturn it.  School officials are reviewing the dress code to determine necessary changes.

 

Read the WRAL Article:  http://wral.com/news/local/story/1809265/

 

Lex-IS Note:

1.   With any policy or school rule, striking the right balance between too much and too little regulation, or too much and too little detail, can be an art.   One legal axiom is apropos: bad cases make bad law.  Likewise, difficult circumstances can lead to problem policies. 

2.  When crafting policies like this one, here are a few tips:

* Consider extreme cases as one way to analyze how well the policy is crafted.

* Allow reasonable input.

* Consider waivers for legitimate and/or unforeseen circumstances.

* Build in a review and re-assessment period for more complex policies or with unpredictable outcomes.

* Review your policies periodically for clarity, relevance, and legal compliance.

* Like the school district in this case, be open to feedback and willing to try again or re-assess in the face of legitimate concerns. 

 

Due Process – In-School Suspension:  No Need for Due Process for In-School Suspension

Laney v. Farley  (6th Cir., Aug. 27, 2007)

 

The Sixth Circuit Court of Appeals upheld a school's decision to issue a one-day in-school suspension to a student without first giving her notice and a hearing.  The student allegedly violated a school policy prohibiting the use of cell phones in school.  The school confiscated the cell phone and suspended her for one day without first telling her parents and without giving the student an opportunity to defend herself.  The student's parents brought a lawsuit claiming that, by failing to give the student proper notice and a hearing, the school had violated her right to due process.  The Sixth Circuit Court of Appeals rejected this argument, reasoning that because a student still does work during an in-school suspension, they are denied no property right under the Constitution, precluding the need for due process.

 

Source:  NSBA Legal Clips (www.nsba.org/legalclips).

Read the case:  http://caselaw.lp.findlaw.com/data2/circs/6th/066000p.pdf

 

 

Employee Free Speech:  Supreme Court Refuses to Hear Appeal of Fourth Circuit Decision Permitting Schools to Regulate Materials Posted on Classroom Bulletin Boards

Lee v. York County School Div. (U.S., 2007)

 

The Supreme Court will not review whether the Fourth Circuit (the federal court with appellate jurisdiction over North Carolina) was correct in ruling that materials posted by a teacher on a classroom bulletin board were curricular in nature and thus not a matter of public concern warranting heightened First Amendment protection.

 

The Fourth Circuit decision in Lee v. York County School involved a Spanish teacher who posted a number of inspirational and informational materials on a bulletin board in the classroom.  Although none of the materials were related to the Spanish curriculum, the Fourth Circuit determined that the bulletin board was a school-sponsored speech item.  The court reasoned that, due to the placement of the bulletin board in the classroom setting and the fact that the principal maintained oversight over what was posted on the board, they bore the imprimatur of the school.  As such, the items were curricular in nature and, under Hazelwood Sch. Dist. v. Kuhlmeier, could be regulated by the school board without violating the First Amendment.

 

The Supreme Court's choice not to review the Fourth Circuit's decision in Lee does not mean that the High Court agreed with the ruling.  However, it does mean that Lee is currently the law in North Carolina and, therefore, school districts may generally regulate the content of materials posted on classroom bulletin boards.

 

Read the Fourth Circuit Decision: http://pacer.ca4.uscourts.gov/opinion.pdf/061363.P.pdf

 

 

Students – Sexual Harassment (Title IX):  High Court Will Not Review UNC-Chapel Hill Sex Discrimination Case

Jennings v. University of North Carolina (US, 2007)

 

The U.S. Supreme Court has declined to review a Title IX sexual discrimination suit decided by the Fourth Circuit Court of Appeal which ruled on a number of significant legal issues.  First, the court held a lawsuit could go forward against a soccer coach who, amongst other things, allegedly used his position to create a hostile and abusive environment for several women soccer players.  The coach had argued unsuccessfully that the action should not be able to go forward because the plaintiff soccer players had not proven that the coach's action had a negative effect on their equal educational opportunities.  Second, the Fourth Circuit held that complaints from team members about the coach's actions were sufficient to put the University of North Carolina on actual notice of a hostile environment.  The university could therefore be held liable if the plaintiff soccer players sufficiently proved their claim.

 

The appeal to the Supreme Court presented a number of important issues, including whether the soccer players' could maintain their sexual discrimination suit on a claim of emotional harm and whether the university could be liable for deliberate indifference to the coach's conduct.

 

Read the Fourth Circuit Decision: http://pacer.ca4.uscourts.gov/opinion.pdf/042447A.P.pdf

 

 

Students – Attendance:  Wake County Challenges Court Ruling Prohibiting the District from Forcing Students to Attend Year-Round Schools.

 

The Wake County School Board has appealed a trial court ruling that prohibits the school district from forcing students to attend a year-round school.   The case arose from Wake County's decision in February to convert 22 traditional calendar schools to a year-round schedule.  The school district made the change to deal with the high influx of students in the district.  A group called Wake CARES challenged the change.  Other groups supporting the Wake schools and participating in the suit are concerned that the ruling will have a broader impact across the state, undermining school efforts to control diversity through school assignment and handcuffing the administration of educational services.

 

Read the article: http://www.newsobserver.com/news/story/721951.html

 

 

Special Education:  High Court Rules that Schools in the Second Circuit Must Reimburse Parents for Tuition Costs Associated with a Unilateral Private School Placement

Board of Education of the City of New York v. Tom F., No. 06-637 (Oct. 10, 2007)

 

The U.S. Supreme Court upheld a Second Circuit decision which had concluded that, under the IDEA, parents of a student requiring special education services were entitled to tuition reimbursement when they unilaterally placed the student in a private school without first sending the child to public school.   The decision involved a 4-4 split among the justices, which by rule affirms the appeals court decision.  Justice Kennedy recused himself from the case, but it is Court policy not to say why.

 

Due to the importance of the issue and conflicting Circuit Court rulings, it is likely that the Supreme Court will hear another case addressing the same issue – whether or not parents are entitled to reimbursement for private tuition even when they have never placed their child in a public school.   (The defendant school district argued that parents must place their children in public schools first to carry out the main purpose of the IDEA – to facilitate cooperation between parents and the school.)   For now, the state of the law in North Carolina is unclear since the Fourth Circuit has not ruled on the issue.

 

Read the Supreme Court's Opinion: http://www.supremecourtus.gov/opinions/07pdf/06-637.pdf

 

 

School Discipline:  School Did Not Violate Fourth Amendment with Strip Search

Redding v. Safford Unified Sch. Dist. #1, No. 05-15759 (9th Cir. Sept. 21, 2007)

 

A school district in Arizona did not violate the Fourth Amendment's prohibition against unreasonable searches and seizures when it searched a student for prescription drugs.  After hearing reports that two girls were selling prescription drugs, school officials at Safford Middle School investigated the claims and called the two girls down to the office to conduct a search. After discovering pills on one student, school officials confronted the other and conducted a search of her purse and pockets.  When that search failed to turn up any pills, school officials conducted a strip search, again to no avail.

 

The second student sued the school officials, claiming the search was unreasonable under the Fourth Amendment.  The Ninth Circuit rejected her claim.  It determined that school officials had reasonable grounds to search her because the school officials took steps to investigate the initial reports that she was selling drugs.  The strip search was also permissible in scope, both because schools have a strong interest in protecting students against illegal drug distribution and the search was conducted in a private place.

 

Read the case: http://caselaw.lp.findlaw.com/data2/circs/9th/0515759p.pdf

 

 

Teacher Conduct: High Court Declines to Review Whether Connecticut May Criminalize Sexual Conduct Between Teachers and Students

State v. McKenzie-Adams, 915 A.2d 822 (Conn. 2007)

 

The U.S. Supreme Court has declined to review a Connecticut Supreme Court decision which had affirmed second-degree assault charges against a teacher who had sexual relations with two students who had reached the age of consent.  The teacher in the argued that Connecticut could not criminalize such conduct under the U.S. Constitution because it involves private acts.   The Connecticut Supreme Court rejected this argument, reasoning that even if the US Constitution protects privacy rights, teachers who have sexual relations with students fall outside the zone of protection.

 

Note: the Supreme Court's decision not to review the Connecticut case does not necessarily mean that the High Court thinks the Connecticut court decided the case correctly.

 

Read the Connecticut Case: http://www.jud.state.ct.us/EXTERNAL/supapp/Cases/AROcr/CR281/281CR39.pdf

 

 

Negligence – Liability Waivers: Parents Precluded from Suing on Negligence Claims Against School Liability Waiver.

Krathen v. Sch. Bd. of Monroe County (Fla. App. 3 Dist., Oct. 7, 2007)

 

Parents who signed a release exempting the school from liability for claims associated with their child's athletic participation could not sue a school for negligence, a court in Florida concluded.  The release exempted the school from claims associated with the student's athletic participation due to any negligence arising out of the student's athletic participation.  As such, the negligence claim was dismissed.

 

Lex-IS Note:

* This case is not binding in North Carolina.  The law relating to the validity of waivers in instances like this is not well settled.   It is not clear whether or under what circumstances a waiver of liability would be upheld by North Carolina courts.

* School officials should not assume such waivers provide adequate protection from liability.  As usual, it will depend on all circumstances and requires an attorney's input when drafting or evaluating such waivers. 

* Important factors include the nature of the activity (e.g., is it extra-curricular and voluntary), the type and degree of school culpability, the adequacy of notice regarding risks involved, and the extent to which parents knowingly and voluntarily sign such waivers. 

 

Personnel – Teacher Nonrenewal: Probationary teachers have no right to a hearing to challenge a nonrenewal recommendation; there was substantial evidence in the record that a board's nonrenewal decision was not arbitrary or capricious.

Moore v. Char.-Meck. BoE. (N.C.App., Sept. 4, 2007)

 

In an important ruling clarifying the process of teacher nonrenewal, the North Carolina Court of Appeals held that probationary teachers (unlike tenured teachers or nonrenewed school administrators) do not have a right to a board hearing to challenge a superintendent's nonrenewal recommendation under G.S. 115C-325 (Tenure Act) or under G.S. 115C-45(c) (Required School Board Hearings).  The case involved a middle school teacher who was not renewed because she was a "threat" to students.  In addition to previous substandard evaluations, school officials also determined that she had, on a number of occasions, hit students with a ruler and used profanity.

 

Responding to the teacher's argument that providing a hearing would be fairer, the court noted,

 

    "As our Supreme Court has explained: 'The duty of a court is to construe a statute as it is written.  It is not the duty of a court to determine whether the legislation is wise or unwise, appropriate or inappropriate, or necessary or unnecessary.'... To obtain a right to a hearing before the Board, probationary teachers must look to the General Assembly and not the courts. Our hands are tied by the statutes' plain language."  [Note: time will tell if the N.C. Legislature acts upon this statement by changing the law.]

 

 

The court also rejected the notion that a superintendent must personally sign a nonrenewal recommendation to the school board. In this instance a personnel officer signed the recommendation; the important consideration was whether the substantive recommendation was the Superintendent's. 

 

Read the case: http://www.aoc.state.nc.us/www/public/coa/opinions/2007/060601-1.htm

 

Lex-IS Notes:

 

    * This case provides an excellent and interesting overview of teacher nonrenewal law, the practical documentation and procedural matters that courts consider important, and some of the legal distinctions between probationary and tenured teachers.  It would be worthwhile reading for school supervisory personnel and a basis to consider their supervisory and documentation practices.

 

 

Immunity –  Negligence: Sovereign immunity not waived by purchasing insurance policy that excludes acts of negligence.  Craig v. New Hanover BoE. (N.C.App., Sept. 4, 2007)

 

Fourteen year-old and mentally disabled Jon-Paul Craig was suspended and ultimately removed from school after allegedly engaging in sexual conduct with another male classmate.  Jon-Paul's parents subsequently sued the school board claiming, in part, that, through its employees, it was liable for negligent supervision and allowing the alleged assault to Jon-Paul. 

 

The North Carolina Court of Appeals rejected this claim because the school system was protected from liability for negligence because of its "sovereign immunity."  Although the state can voluntarily waive such immunity by purchasing liability insurance, in this instance, the school's insurance policy did not cover acts of negligence and, for that reason, there was no waiver.

 

Read the opinion:  http://www.aoc.state.nc.us/www/public/coa/opinions/2007/070080-1.htm

 

Lex-IS Notes:

 

    * School officials (or their attorneys) should carefully scrutinize and regularly review insurance policies to determine the extent to which they affect the Board's potential liability.  In this instance, the Board avoided liability but not the cost of litigation.   (A subsequent case similarly demonstrates the relationship of insurance coverage and liability – this time under federal discrimination law.  The U.S. Sixth Circuit Court of Appeals just ruled that a Michigan school system's insurance policy did not cover acts of discrimination.  Ann Arbor Public Schools v. Diamond State Ins. Co. (6th Cir., Sept. 10, 2007)

 

 

 

Student First Amendment Rights – Student Clubs:  A school could properly apply its anti-discrimination policy to a student bible club because of its restrictive membership requirements.  Truth v. Kent School Dist. (9th Cir.,  Sept. 7, 2007)

 

A school system could enforce its non-discrimination policy under the First Amendment and the Federal Equal Access Act by prohibiting a Bible club from imposing moral and spiritual membership requirements, especially one that required members to hold a "true desire to grow in a relationship with Jesus Christ." 

 

Lex-IS Note:

 

    * This case is not binding on North Carolina schools, but illustrates the difficult area of student religious rights in relation to student-run groups.

    *  One distinction to keep in mind is whether clubs impose such requirements broadly upon all members (as in the Truth case) or only upon officers responsible for carrying out and preserving the group's organizational purpose.  The Second Circuit Court of Appeals has previously noted that officer requirements are not problematic.  See Hsu v. Roslyn Union Free School District No. 3, 85 F.3d 839 (2d Cir.) cert. denied, 519 U.S. 1040, (1996).

 

 

 

Operations – Desegregation: Legal and policy experts assess the impact of Supreme Court's school integration case. 

 

On September 5-6, two panels of education law and policy experts convened at Duke University Law School to examine the impact of the Supreme Court's recent decision in Parents Involved in Cmty. Sch. v. Seattle Sch. Dist., No. 1, in which the Court concluded that two school assignment plans were unconstitutional because the plans defined students by race.   The panelists, amongst other things, concluded that while schools may still use race-conscious measures to combat racial isolation and promote diversity in the schools, Parents Involved limited the number of tools that schools can use to do so.  Specifically:

 

    * Most likely, school districts MAY look at the racial demographics of the district when drawing attendance zones, choosing where to place new schools, tracking student enrollment and performance, hiring and recruiting teachers, and allocating resources for special programs.

    * Generally, school districts MAY NOT look at the race of individual students in assigning students to school districts.

    * Two exceptions to the rule that school districts may not look at the race of individual students in school assignment MAY, however, apply.  First, if a school district has exhausted all other permissible race-neutral and race-conscious measures and has not been able to sufficiently fight racial isolation or promote diversity, then as a "last resort" it may potentially assign students on the basis of individual racial characteristics.  Second, a school district may be allowed to conduct "a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component."  Schools that adopt any of these measures still face serious risks of litigation. 

 

The panelists included the local counsel for the Wake County Schools, attorneys who had argued the case on behalf of Seattle School District, policy experts from Duke's Terry Sanford Institute of Public Policy, Duke legal scholars, and a member of the Center for Equal Opportunity.

 

 

School Safety: Virginia Tech shooter allegedly suffered from Severe Anxiety Disorder, raising concerns about the lack of information transfer between schools and colleges.

 

The Washington Post reports that Seung Hui Cho, the Virginia Tech shooter, received special education services to address a severe anxiety disorder while a student in the Fairfax County School District in Virginia.  The disorder, called selective mutism, was an emotional disability that caused Cho to have difficulty communicating in social settings.  Fairfax County had devised a detailed special education plan to address the disorder, but did not communicate Cho's special education needs to Virginia Tech.  Federal privacy and disability laws prohibit schools from sharing private information, such as special education services, with colleges and universities.  After Cho stopped receiving special education services at Virginia Tech, experts say that he became increasingly isolated and ridiculed.

 

Read the article:  http://www.washingtonpost.com/wp-dyn/content/article/2007/08/26/AR2007082601410.html?hpid=topnews

 

 

Student Speech – Court Upholds Preliminary Injunction Prohibiting Bible Distribution

Doe v. South Iron R-1 Sch. Dist. (8th Cir.,  Aug. 28, 2007).

 

The U.S. eighth circuit court of appeals (whose rulings do not govern North Carolina) upheld a trial court injunction against a school system that enacted a policy allowing Bibles to be distributed to fifth-grade students.  The court did not declare the policy unconstitutional, but held that the trial court did not abuse its discretion in issuing the injunction before holding a trial on the matter.

 

Read the opinion: http://www.ca8.uscourts.gov/opndir/07/08/063373P.pdf

 

 

Cyberlaw – Free Speech – Court Upholds Rejection of Vulgar Website Ad

Myers v. Loudoun County Sch. Bd., (E.D. Va., Aug. 28, 2007)

 

School authorities who declined to publish an advertisement that referred readers to an Internet website, www.CivilReligionSucks.com, did not violate the First Amendment, a federal trial court in Virginia concluded.  The website name was vulgar, the court said, even though the group proposed to change the name to CivilRelgionSux.com.

 

 

School Immunity – Insurance

North Carolina Ins. Guar. Ass'n v. Trustees of Guilford Tech. Comm'ty College (N.C. App., Aug. 29, 2007).

 

The North Carolina Court of Appeals concluded that a community college had immunity from an insurance company's claim for reimbursement under an insurance policy.  The legislature, said the court, only waived the college's statutory immunity in the narrow instance where an institutional employee raises a valid workers' compensation claim. 

 

 

Employee Safety – Court Upholds Restraining Order Against Angry Parent

Abernathy v. Mzik (Utah App., Aug. 29, 2007)

 

The Utah state court of appeals (whose decisions are not binding in North Carolina) affirmed the issuance of a civil restraining order for a teacher against a father who was upset that the teacher lowered his child's grade for cheating.  The father had pressed a tape recorder into the teacher's face and caused her to fear for her safety, justifying the restraining order under the terms of Utah Law.

 

Read the opinion: http://www.utcourts.gov/opinions/appopin/abernathy072707.pdf

 

Charter Nonrenewal: Fiscal and Academic Mismanagement

Brown Charter School v. Harrisburg City School Dist., (Pa.Cmwlth., Aug. 22, 2007)

 

A Pennsylvania state court upheld a chartering body's decision not to renew a school's charter when the school in question consistently failed to meet academic and financial requirements.  The school had mounting debt problems and student test scores failed to improve sufficiently compared to other schools. 

 

Lex-IS Practice Notes:

 

    * Charter schools are bound by the agreements they enter into and by state and federal laws.  The court's ruling is a reminder that basic fiscal and academic soundness is a fundamental requirement.

    * School officials are encouraged to work with chartering officials and implement practices in a timely manner to avoid similar consequences.  If a school anticipates chartering difficulties, it may need to retain help to guide it in meeting charter requirements and negotiating with chartering officials.   This should be done well in advance of a charter's expiration date.

    * If contemplating a challenge to a chartering decision, keep in mind that courts typically take a common-sense approach and defer to agency decision-making if the agency has not acted arbitrary or in violation of legal or contractual provisions.

 

 

Note that this case is for illustration purposes and is not binding on North Carolina schools.

 

[Case originally reported by West Integration Solutions of Thompson Publishing, Aug. 22, 2007]

 

 

Student Speech: Court Rejects Football Players' Mutiny Petition

Lowery v. Euverard, No. 06-6172 (6th Cir.,  Aug. 3, 2007)

 

The U.S. Sixth Circuit Court of Appeals (whose decisions are not binding on North Carolina Schools), has rejected several Tennessee high school football players' free speech claims against their head coach and school system.  Several players initiated a petition among their peers that stated, "I hate [the coach] and I don't want to play for him."   When the coach discovered their authorship and they refused to apologize, he kicked them off the team.  The students sued, claiming a breach of their free speech rights.   The Court of Appeals declared that it was reasonable to predict that the petition would disrupt the team.  It also noted that student athletes have less free speech protection than regular students since playing sports is a privilege, not a right, and that it is not for courts to second-guess school officials' rational judgment.  

 

Lex-IS Notes

 

    * The boundaries of student free speech jurisprudence are not always easy to predict, making this case informative for N.C. school leaders.  This case helps to see where one court drew the line with student athletes.

 

 

The main legal standard in cases like this is whether there is an actual or likely "disruption"  or "material interference" to school operations (the "Tinker" standard).  Be careful to consider this, especially with legal assistance in difficult cases.

 

Read the opinion: http://www.ca6.uscourts.gov/opinions.pdf/07a0295p-06.pdf.

 

[Reported by the National School Boards Association, Aug. 16, 2007.]

 

 

Parents Involved in Comm'ty Schs. v. Seattle Sch Dist. 1 (US, June 28, 2007).  Supreme Court rules race-based factoring in two school systems' student assignment plans is unconstitutional under 14th Amendment Equal Protection Clause.  The plans were not "narrowly tailored"; a plurality of justices  (less than a majority & not binding) declare that diversity is not a "compelling interest."

 

Morse v. Frederick (US, June 26, 2007).  Supreme Court rules that suspension of a high school student who raised "Bong Hits 4 Jesus" banner at a school-supported event involving the Olympic Torch Relay did not violate student's free speech rights.  The Court reasoned, in part, that the banner could be viewed as promoting illegal drug use.

Tennessee Secondary School Athletic Assoc. v. Brentwood Academy (U.S., June 21, 2007).   Supreme Court ruled that a private school's first amendment free speech rights were not violated by its 2-year probation imposed by the state athletic association for violating an association rule prohibiting direct contact with incoming students.  The rule was a reasonable means of protecting students and the school was a voluntary member of the association.

 

Winkelman v. Parma City Sch. Dist. (U.S., May 21, 2007).   Supreme Court rules that the IDEA affords parents the right to litigate to seek their own independent rights, including a free appropriate public education (FAPE) for their child.

 

Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. 5 (4th Cir., Dec. 15, 2006). Fourth Circuit rules that school system violated religious group's free speech rights by not waiving facility use fee.  The system policy failed to provide "narrow, objective, and definite" guidelines for determining fee waivers, risking potential viewpoint discrimination arising from unfettered discretion to determine what constituted a "school organization" (exempt from fees) or when a waiver was in the school's "best interests."  Said the court, "without standards governing the exercise of discretion, a government official may decide who may speak and who may not based upon the content of the speech or viewpoint of the speaker."

 

 

2007 NC Legislative Highlight Bulletts

(The full text of bills is available at http://www.ncleg.net using bill numbers provided below)

 

    * NCDPI to study high school special education services (H 17)

    * "Residence" for special educations students defined and treated the same as for regular students (H 18)

    * August 31 is new cutoff date for kindergarten (H 150)

    * Class 2 misdemeanor for bus drivers to use cell phones while driving except in emergencies (H 183)

    * School boards must adopt policies to annually inform high school students of lawful infant abandonment procedures (H 485)

    * Community college lateral entry requirements modified (H 583)

    * State Board to encourage high schools to offer American Sign Language as modern foreign language (H 915)

    * LEAs to admit military children who "reside" in system  - no "domicile" requirement (H 1357)

    * State Board to establish a rule for excused absences for valid educational opportunities such as serving as a legislative page (H 1464)

    * Schools must annually provide parents with cervical cancer info  (S 260)

    * School boards now required to adopt tobacco-free school policies (S 1086)

    * Change of placement to homebound instruction must be least restrictive alternative environment; IEP team to reassess monthly (H 14)

    * Special education terms defined (H 20):

          o "Educational services"

                +  "The necessary instructional hours per week in the form and format as determined by the child's IEP team and consistent with federal and State law. The instruction shall be delivered by an appropriately qualified teacher to the extent required by federal and State law, which requires a free appropriate public education and opportunity for a sound basic education.

                + Related services included in the child's IEP [and]

                + Behavior intervention services designed to address the behavior violation that caused the disciplinary change of placement in order to prevent a recurrence."

          o "'Homebound instruction" means "educational services provided to a student outside the school setting."

 

    * Principal to notify parents of any suspension or expulsion of their child (H 1739)

          o By reasonable means of communication (e.g. fax, e-mail, certified mail, regular mail)

          o Student right to textbooks, class assignments, and exams

    * New 3-year expiration of bus driver license endorsement (H 1546)

    * Extend retired teacher return to work (H 1437, Budget Bill)

          o Allowing return to work w/o loss of retirement pay after 6-month wait

          o Elibility for the following teachers:

                + Age 65, 5 years of service

                + Age 60, 20 years of service

                + Any age, 30 years of service

          o LEA pays 11.7% into retirement system

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