School Law Update

June 30, 2008

Volume 08-07

 

Headlines Links

(Click the header links below to view full summaries)

 

Cases and News Affecting North Carolina Schools

 

 

Noteworthy Cases in Other Jurisdictions (not binding in N.C.)

 

 

 

Cases and News Affecting North Carolina Schools

 

Personnel–Public Employment At Will: U.S. Supreme Court upholds employment at will in the government sector by rejecting Òclass of oneÓ Equal Protection claim.

Engquist v. Oregon Department of Agriculture, No. 07-474 (June 9, 2008).

 

The doctrine of Employment at Will gives employers and employees expansive discretion to terminate their employment relationships at any time, for any reason, with or without notice, unless some exception to the rule applies.   The present case tested whether government employers have the same broad-ranging discretion as their private counterparts.   The answer of the United States Supreme Court is a definitive ÒYes.Ó   

 

The Òclass of oneÓ theory under the Equal Protection clause protects individuals who are victims of arbitrary, vindictive, and/or malicious government regulation.  The U.S. Supreme Court ruled 6-3 that the class of one theory was Òsimply a poor fit in the public employment context.Ó  The Court based its decision on the Òcrucial difference between the government exercising the power to regulate or license, as lawmaker, and the government acting as a proprietor, to manage [its] internal operations,Ó the primary difference being that as proprietor, it has much greater discretion than it does when it acts as lawmaker and affects the public at large. 

 

The case involved an Oregon Department of Agriculture employee who was passed over for a promotion.  In addition to her Òclass of oneÓ Equal Protection claim, she also asserted discriminated claims based on her age, sex, and national origin.   The issue presented to the U.S. Supreme Court was whether the Equal Protection class of one claim applied to government employment decisions, not just to government regulatory actions as previously recognized by the Court.  Resting its decision primarily on the fact that the government must exercise far more discretion when managing its internal affairs as employer in contrast to regulating the public through its regulatory power, the Court refused to impinge on the governmentÕs discretionary prerogatives.  

 

Particularly significant is that the Court essentially affirmed a government employerÕs right to employ its personnel Òat willÓ if it so chooses and the decision is based on subjective, non-discriminatory, determinations.  That means, as it does in the private sector, that an at-will government employee may be terminated for "good reason, bad reason, or no reason at all."  The Court noted that it "never held that it is a violation of the Constitution for a government employer to discharge an employee based on substantively incorrect informationÓ and that the ÒConstitution does not require repudiating that familiar doctrine.Ó   The court noted that it was guided by the "common-sense realization that government offices could not function if every employment decision became a constitutional matter" subject to a courtÕs review.

 

Lex-IS Points:

 

Read the case.

 

 

Cyberlaw–Free Speech: Fourth Circuit upholds school systemÕs right to exclude opposing policy viewpoints on its website and e-mail.

Page v. Lexington County Sch. Dist. One, No. 07-1697 (4th Cir. Jun. 23, 2008).

[This case was recently reported in the Lex-IS Cyber e-Law Special Update.]

 

School Cyberlaw cases are growing in number as technology use expands.  Still, few cases have been decided by federal appellate courts and fewer still by the Fourth Circuit Court of Appeals, which has jurisdiction over North and South Carolina schools.   When they are, they are worth noting, especially when they address a significant area of law like the First Amendment as applied to school systemsÕ use and control of their web pages and e-mail.  

 

On June 23, the Fourth Circuit upheld the right of a South Carolina school system to deny a citizen Òequal accessÓ to the SystemÕs webpage, e-mail, and other communication mechanisms in order to prevent that person from using those forums for supporting proposed voucher legislation.   The school board for the Lexington County School District One (the ÒDistrictÓ) decided to oppose proposed state voucher legislation and to communicate its opposition through its webpage, e-mail, PTA newsletter and other channels.  

 

The plaintiff supported the voucher legislation and requested that the District grant him "equal access" to its communications channels to advocate his pro-legislation views.   The District refused and the plaintiff sued, claiming the denial was unconstitutional Òviewpoint discriminationÓ under the First Amendment Free Speech Clause.

 

The federal district court granted summary judgment for the District (i.e., decided the case without a trial).  The Fourth Circuit affirmed that decision in all respects.  The court first addressed whether the SystemÕs policy advocacy against the voucher legislation was "government speechÓ and therefore exempt from First Amendment scrutiny.   Reviewing the law of government speech, the court noted that the determination depends on the extent of the governmentÕs ownership and control of the message.   Key factors include the speechÕs purpose, the extent of the governmentÕs Òeditorial control,Ó the ÒidentityÓ of the person making the speech, and the person having Òultimate controlÓ over the content.    

 

Applying each of those factors, the court determined that the SystemÕs advocacy was, indeed, Ògovernment speech.Ó   The Board decided to oppose the legislation and to communicate that opposition to the school and public community.  At all points in time it controlled what content was conveyed.  Even though some private party information was referenced or distributed, the decision to do so remained in the sole control of school officials.

 

The plaintiff argued that by linking to third-party information on the SystemÕs website, the District had created a Òlimited public forum,Ó thus entitling members of the public, like the plaintiff, to have their views posted as well.  The court rejected this argument.  Its reasoning is particularly significant and instructive for school systems regarding website content and control.  Key factors that kept the DistrictÕs website ÒclosedÓ included:   (1) the fact that third-party websites were linked only based on their support of the DistrictÕs position;  (2) the District retained complete control of its own website, including the ability to delete any link at any time; (3) the District never adopted the third-party information as its own and it also included disclaimers regarding the content of third-party websites; and (4) the District never wavered in its opposition to the voucher legislation and its message was therefore consistent.  In sum, the System "sufficiently controlled [its website] so that its speech remained government speech and it did not create a limited public forum by including links to other websites."  The court ruled similarly regarding the SystemÕs e-mail communications.

 

Regarding the PTA newsletters, the court recognized that these may have created a limited public forum but that the plaintiff was not a member of the class of individuals entitled to provide content and that the DistrictÕs regulations for the newsletter were reasonable.    

 

Finally, the court upheld the DistrictÕs right to advocate its policy positions.   Rejecting the plaintiffÕs argument against this, the court noted that citizens had the right to vote school board members out of office if they did not like the boardÕs advocacy.  The court recognized the boardÕs right to Òdefend public education in the face of pending legislation that it views as potentially threatening of public education."

 

Lex-IS Points:

There is a fine line between when a school system website or other forum is ÒclosedÓ and when it is a Òlimited public forumÓ subject to public participation; school officials have often crossed the line without knowing it and therefore subjected their actions to greater First Amendment scrutiny.

The factors applied by the Fourth Circuit in the Page case provide some guidance as to how a school system can retain control over the messages it communicates.

Before making decisions about expanding or changing technology use, be sure to consider the First Amendment and other legal ramifications and get legal advice if there is question.

School system policies should be reviewed periodically to determine if they comport with current technological and legal trends.

 

Read the case.

 

 

Employment Discrimination – Retaliation: Supreme Court requires employer to prove non-discriminatory decisions under ADEA.

Meacham v. Knolls Atomic Power Laboratory, No. 06-1505 (June 19, 2008).

 

This is a case under the Age Discrimination in Employment Act (ADEA) largely of interest to employment lawyers who have to worry about the strategic questions of how to prove or disprove claims for or against their clients.   Occasionally an employee or group of employees allege that even though an employer did not intentionally discriminate, the employerÕs practice have a general Òdisparate impactÓ against the class of individuals they are part of.    Employers may defend employment practices that appear to have a disparate impact on a class of individuals if the employerÕs actions were based on Òreasonable factors other than ageÓ (RFOA).  This case involved a disparate impact claim and RFOA defense under the ADEA.

 

The Knolls Atomic Power Lab (KAPL) was a government contractor that reduced its workforce; of the 31 employees let go, 30 were older than 40 years of age based on a formula applying various performance and other factors.  KAPL argued its firing decisions and the factors it applied were based on Òbusiness necessityÓ and not related to age.  The United States Supreme Court, however, ruled that the Òbusiness necessityÓ standard was not the appropriate legal standard in disparate impact cases and sent the case back to the Second Circuit which held that the employees had failed to disprove KAPLÕs RFOA defense.

 

The Supreme Court again overruled the Second Circuit, this time holding that the RFOA exemption is an Òaffirmative defense.Ó  This means that the burden of proof rests on the employer (not the plaintiff employees) to show that there was not an age-related factor at work.  Though the CourtÕs ruling generally favors employees, the Court did allay some employer concerns by stating that Òa plaintiff must do more than merely allege a disparate impact resulting from the employerÕs general policy; instead, he/she must identify the specific test, requirement, or practice that had a disparate impact on older workers.Ó  Nonetheless, the Court admitted that its decision makes it Òharder and costlierÓ for employers to defend employment practices when asserting the same defense.

 

Read the case. 

 

 

Personnel–Age Discrimination:  U.S. Supreme Court allows restriction of disability benefits to qualified employees.

Kentucky Retirement Systems v. EEOC, No. 06-1037 (June 19, 2008). 

 

The U.S. Supreme Court ruled that the State of Kentucky Retirement System does not violate the Age Discrimination in Employment Act (ADEA) by withholding disability retirement benefits to those employees who have already qualified for state retirement benefits based on their age plus years of service (55 years old + at least 5 years of service) or their years of service alone (20 years). 

 

A 61-year old state employee sought disability retirement even though he was qualified under the stateÕs regular retirement program.  The Court upheld the stateÕs program restricting the employee from receiving disability retirement benefits because there was a Òclear non-age related rationale for the disparityÓ in plan benefits.  In other words, the plaintiff failed to prove the requisite ÒintentÓ to discriminate against him because of his age.

 

Read the case.

 

 

Personnel–WorkersÕ Compensation: TeacherÕs anxiety disorder arising from stress of classroom not compensable

Hassell v. Onslow County Board of Education, No. 172A07  (June 17, 2008). 

 

The North Carolina Court of Appeals refused a sixth-grade teacherÕs workersÕ compensation claim that her teaching job placed her at an increased risk of developing an anxiety disorder and therefore, her anxiety disorder was not a compensable occupational disease.  The court found that the teacher was neither forced to perform any extraordinary tasks, nor exposed to unusual and stressful conditions.  Instead, the evidence indicated that the teacherÕs troubles stemmed from her inadequate job performance.  

 

Read the case.

 

Noteworthy Cases in Other Jurisdictions

(These cases are not binding in North Carolina)

 

Remedies – Attorney Fees:  Parents not entitled to attorney fees despite merits of their prior claims. 

Robert K. ex rel. T.K. v. Cobb County Sch. Dist., No. 07-14137 (11th Cir. May 28, 2008)

 

The U.S. Court of Appeals for the Eleventh Circuit upheld the denial of attorney's fees under the IDEA for parents of an autistic child.  When the school system attempted to place the child at a high school the parents challenged the placement, claiming that a preceding functional behavior analysis must be completed and, in the meantime, that their child should stay at a behavioral clinic under IDEA's "stay-put" provision.  After an administrative law judge ruled for the child and his parents the parents sued for their attorney fees.  In a decision hinging largely on its procedural analysis, the court ruled that the parents were not a Òprevailing partyÓ under IDEA, in part because one of their claims was based on a prior settlement agreement, not on the IDEA and, their ÒStay PutÓ claim did not allow for attorney fees.  

 

Source: NSBA Legal Clips

 

 

Disability – Retaliation – Preemption:  IDEA does not preempt other discrimination claims that arise from separate statutes.

M.M.R.-Z. ex rel. Ramirez-Senda v. Puerto Rico, (1st Cir.  June 5, 2008)

 

Parents of a disabled child filed suit claiming they had been retaliated against in violation of their First Amendment rights by school officials after they complained to police of physical and sexual abuse against their child by a school teacher.   Their suit included claims filed under the IDEA, the Americans with Disabilities Act (ADA), the Rehabilitation of 1973, and Title IX of the Educational Amendments of 1972.    The court, ruling for the parents, determined that their claims did not arise solely from the IDEA but also from the other statutes.  Consequently such other claims were not Òpre-emptedÓ by the IDEA but could be considered in addition.   

 

Source: Westlaw Watch, June 8, 2008

 

Other News

 

Cyberlaw:  Pornography charges result in North Carolina Central University firings.

 

Three state employees at NCCU were fired for allegedly using university computers to download pornography and other improper material from the Internet according to the North Carolina State Auditor.

 

Source: Raleigh News & Observer, June 18, 2008.

 

 

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