School
e-Law Update
October 3, 2008
Volume 08-10
Headline Links
(Click the header links
below to view full summaries)
Cases
and News Affecting North Carolina Schools
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Personnel – Disability
Discrimination: Congress passes law to broaden protection for disabled
employees.
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Negligence – Supervision
– Special Needs Students:
Court dismisses claim arising from bathroom accident of special needs
student.
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Charter Schools – State Immunity
– Discrimination: Court
upholds denial of charter renewal for Raleigh school based on the StateÕs
Eleventh Amendment immunity against discrimination claim.
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Operations – Finance –
Benefits: New IRS rules require school systems to
play active role with employee retirement plans
Cases
and News of Interest from Other Jurisdictions
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CyberSpeech – Personnel – Due Process: Court
uphold nonrenewal of teacher based on improper MySpace postings.
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Personnel – Negligence –
Special Education: Court refuses to hold school system and officials liable
for injury to teacherÕs aide caused by autistic child with violent history.
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CyberSystems – Open Meetings: Attorney General of
Arizona approves online school board meetings
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Special Education –
Settlement: Parents were bound
by consent order they signed to resolve IDEA dispute.
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Disabled Students
– IEPs – General Progress: An IEP is adequate if a student
makes some progress in school even though not in all generalized settings.
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Personnel – Due Process –
Substitute Teachers:
Substitute teacherÕs due process claim denied because she had no
property interest in her job.
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Special Education: School district
denied student FAPE by failing to test for autism.
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Personnel –Immunity – First
Amendment: Charter school principal immune from liability on First
Amendment claims.
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Personnel – First Amendment
– School counselorÕs First Amendment retaliation claim denied.
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Students – Free Speech:
Punishing students for protesting school dress code violated their Free Speech
rights.
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First Amendment – Religious Establishment:
CityÕs display of crosses held constitutional due to association with CityÕs
name.
Cases and News Directly Affecting North Carolina Schools
Congress
has passed, ÒThe ADA Amendments Act of 2008Ó that liberalizes the protections
for employees with disabilities.
In particular, the law reverses prior U.S. Supreme Court interpretations
of the Americans with Disabilities Act (ADA) that, over time, had narrowed ADA
protections. Specifically, the law states that, ÒThe definition of
disability in this act shall be construed in favor of broad coverageÓ and that
a finding that a plaintiff has a ÒdisabilityÓ in any case Òshould not demand
extensive analysisÓ by a court. For instance, the U.S. Supreme Court previously
ruled that the availability of corrective devices like eyeglasses, hearing
aids, prosthetic limbs, etc., that alleviate the effects of a disability and
allow someone to function ÒnormallyÓ precluded protection under the law. In essence, such persons were penalized
for making efforts to overcome their limitations. The new law also provides that Òan impairment that is
episodic or in remission is a disability if it would substantially limit a
major life activity when active.Ó
A similar but older law, the Rehabilitation Act of 1973, which applies
to employers who receive federal funding, has been similarly modified under the
law.
After
two years of negotiations to resolve differences over language, the bill was
passed overwhelmingly by both chambers was expected to be signed into law by
President Bush. Former
President George H. W. Bush signed the original ADA into law in 1990.
Source: N.Y. Times, Sept. 17, 2008
Foster
v. Nash-Rocky Mount Bd. of Educ., NO. COA07-1233 (N.C. App. July 15, 2008)
This
case provides a good overview of the law of negligent student supervision and
its application, reminding school officials of key principles that courts apply
and that school officials should use to guide their supervisory practices.
A
special needs student in the Nash-Rocky Mount school system suffered from
cerebral palsy, hydrocephalus, and seizure disorder. Over his years in school he had been assisted by the
schoolÕs physical therapist. A
standardized routine existed for taking the student to the bathroom whereby a
teacher or staff aide helped the child into the stall and remained in the
bathroom to assist if necessary.
In one instance, the student slipped in front of the toilet and hit his
head on the seat before the supervising teacher (and a defendant) could enter
the stall to catch him.
Although the student initially appeared to have merely scratched his
head, two weeks later he began vomiting and tests indicated that the shunt in
his head had malfunctioned.
The studentÕs parent then sued the teacher and the school board based on
the teacherÕs alleged negligent supervision. The district court dismissed the suit on the grounds
that there was insufficient evidence to show that the teacher was
negligent. The North
Carolina Court of Appeals affirmed that decision.
The
procedural question was whether the plaintiff had sufficiently alleged facts to
allow the case to be decided by a jury. Upon a motion by the defendant, the
trial court was asked to grant the defendant a Òsummary judgment;Ó that is, to
rule that there is no reason for the case to go forward because, even if the
facts alleged by the plaintiff are true, they do not support a legal claim. The court held for the defendants
because the facts, as alleged by the plaintiff, failed to meet the ÒelementsÓ
of a negligent supervision claim.
General
negligence claims require proof of several essential elements: (1) the defendant owed a legal duty to
the plaintiff; (2) that duty was breached; and (3) the breach ÒproximatelyÓ or
primarily caused the plaintiffÕs injury.
With
respect to the duties of teachers (element #1), the court noted the
well-established principle that Òteachers are held to the same standard of care
to which a person of ordinary prudence, charged with the teacherÕs duties,
would exercise in the same circumstances.Ó Furthermore, Òthe amount of care due a student
increases with the student's immaturity, inexperience, and relevant physical
limitations. The standard, however, remains that of the exercise of ordinary
prudence given the particular circumstances of the situation.Ó Regarding the case before the court, it
noted that the studentÕs physical condition was Òrelevant, along with the other
conditions present in the situation, in determining whether [defendant teacher]
exercised ordinary prudence in that situation.Ó The predominant question regarding breach of duty is whether
the injury was ÒforeseeableÓ to the reasonable person.
The
negligent supervision claim against the school board, as employer, based on an
employeeÕs harmful actions, a plaintiff must show, essentially, that the
employer knew or should have known that the employee was unfit and that it was reasonably
foreseeable that such unfitness could injure the plaintiff.
In
this case, the court, viewing the facts, once again, in the light most
favorable to the plaintiff, ruled that the supervising teacher did not breach
any duty because she followed routine procedures and could not have reasonably
anticipated or prevented the student from slipping. As a result, the plainiffÕs
negligent supervision claim against the school board also failed.
Lex-IS Points:
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This
case is a good reminder of the duty of care teachers and other school employees
have toward students.
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Liability
may arise if proper procedures are not followed, supervisors ignore their
responsibilities or fail to act reasonably under the circumstances, or school
employees who are unfit for their duties pose a risk to students or
others.
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Documenting
any problems and reasonable remedial actions taken, as always, can refute a
legal claim. In this case,
for example, the school system was able to document the normal procedures that
were taken, including over 1400 instances of accompanying the student to the
bathroom without incident.
A
federal district court judge in North Carolina has dismissed a suit by SPARC
Charter School of Raleigh arising from the StateÕs refusal to renew SPARCÕs
charter. The State claimed
that SPARCÕs low student test scores did not warrant the renewal. SPARC sued alleging the denial was
racially motivated because the schoolÕs staff and students were predominantly
African-American.
Instead of ruling on the substantive claims by SPARC, the court held
that the U.S. ConstitutionÕs Eleventh Amendment prevented SPARC from suing the
State because it is immune from liability in such instances.
Note:
Whether an individual charter school is an extension of the State for immunity
purposes is a key legal issue in this case. If the case is appealed, there is a fair likelihood
that the court of appeals could reject this notion and overturn the trial court
decision.
Source:
Raleigh News & Observer, Sept.
16, 2008
A
recent article in Education Week addresses problems arising from new IRS rules
pertaining to school systemsÕ much expanded and more complicated roles in
administering supplemental 403(b) retirement plans. Previously, schools were simply required to record
employeesÕ investment choices. The
new rules require schools to vet investment companies offering plans, develop
materials governing 403(b) accounts, and assure that employees seeking hardship
withdrawals or loans comply with the rules for doing so. Previously, employees simply dealt
directly with their investment companies; now they must largely act through the
school system.
Schools
now must navigate the complicated IRS regulations, typically without the
resources or expertise to do so. Important issues include a systemÕs Òfiduciary
responsibilityÓ to exercise due diligence in vetting companies, and
information-sharing arrangements with investment firms to exchange information
about employee accounts. One
consequence of these regulations is that some states and school systems are
trimming down the number of such investment options to confine their burden.
Source:
Education Week,
Sept. 30, 2008
Cases and News of
Interest from Other Jurisdictions
(Not binding on North
Carolina Schools)
CyberSpeech – Personnel – Private Postings:
Court upholds nonrenewal of teacher based on improper MySpace postings. Spanierman
v. Hughes,
No. 06-1196 (D. Conn. Sept. 16, 2008)
A
federal district court in Connecticut upheld a school systemÕs nonrenewal of
high school non-tenured English teacher for improper postings on his personal
MySpace webpage. The teacher
communicated with students regarding school- and non-school matters.
Upon investigation, officials conclude the site contained
inappropriate Òpeer-likeÓ
discussions. When confronted, the
teacher initially closed the site but then created a new profile. The teacher
was suspended with pay and later informed that he had exercised poor judgment
and would not be renewed.
The
teacher sued the superintendent, assistant superintendent, and principal,
alleging violations of his due process, equal protection, and First Amendment
rights. The district
court dismissed the suit in favor of the defendants. The court ruled that the teacher had no due process rights
because he had no property interest in continued employment – that is, he
had no guarantee that his contract would be renewed and the defendantsÕ actions
were not grossly arbitrary.
On
the equal protection claim, based on a Òclass of oneÓ theory, the court relied
the U.S. Supreme Court case of Engquist v. Oregon Department of Agriculture,
decided earlier in 2008, which
Òexplicitly held that Ôthe class-of-one theory of equal protection does
not apply in the public employment context.ÕÓ Finally, the court rejected the teacherÕs claim that
the defendants retaliated against him for exercising his free speech rights. It ruled that the teacherÕs MySpace
content was almost entirely of a private matter, not matter of public concern
– an essential element to an employee free speech claim. Furthermore, the plaintiff lacked
evidence of any retaliatory motive by school officials.
Source:
National School Board Association, Legal Clips (Oct. 2, 2008)
Hunt
v. Sycamore CommÕty Sch. Dist., No. 07-4082 (6th Cir. Sept. 12, 2008)
A
special education teacherÕs aide sustained injuries from an autistic student
with a history of violent behavior which included 31 reported assaults on
teachers, aides, and other persons.
During an extra-curricular bowling trip, the student ventured into
another bowling lane, attempting to strike another bowler. When the aide intervened, the student
hit her in the chest and choked her with a lanyard. The aide alleged, as a result, that she suffered two
herniated disks in her neck. She
sued the school system, school officials, and the studentÕs parents. Against the school and its officials
she claimed violations of her federal civil rights and negligence regarding her
Òpersonal security and bodily integrity by failing to provide or maintain a
workplace that was free of foreseeable and unreasonable risks of physical
harm.Ó
The
trial court dismissed the suit against the school and its officials. (The
plaintiff also settled her claims against the parents.) On appeal, the Sixth Circuit
Court of Appeals affirmed. Even if
officials knew of the risks and failed to address them, the aide voluntarily
agreed to work in a hazardous job.
Furthermore, the system had a duty to serve the student under the
Individuals with Disabilities Education Act (IDEA).
CyberSystems – Open Meetings: Attorney
General of Arizona approves online school board meetings
The
Arizona Attorney General (A.G.), interpreting that stateÕs Open Meetings Law,
has determined that the law permits school boards to deliberate and discuss
business maters via online meetings. The stateÕs law includes in its definition
of a meeting includes Òthe gathering of a public body through technological
devices and would encompass serial communications of a quorum of the public
body through the Internet or other online medium.Ó To conform to the requirement that the public have
access to agency meetings, the A.G. instructed school boards to gives proper
notice of and provide public access to such meetings. In a previous opinion, the attorney general pointed
out that serial e-mail communications did not comply with the notice and public
access requirements even thought such communications meet the statuteÕs
definition of a Òmeeting.Ó The
A.G. also noted that boards must offer reasonable accommodations to disabled
members of the public who request them in order to have access to any
electronic meetings.
Muse
B. v. Upper Darby Sch. Dist., (3rd Cir. PA, Sept.
15, 2008)
A parent of a special needs student and a Pennsylvania school
district entered into an agreement to resolve a dispute involving special needs
services. The parent challenged
later actions by the district. The court, however, ruled that because the
parent willingly and voluntarily signed the consent order, the parent had
entered into a binding contract with the school and the order must not be
overturned. To support its
decision, the court noted that the parent had an experienced attorney negotiate
the terms of the order, the parent was not subject to any duress, and the
studentÕs situation had not changed during the period in question.
Source: Westlaw
Watch (Sept. 16, 2008)
Thompson
R2-J Sch. Dist. v. Luke P., ex rel. Jeff P. (10th Cir. Sept. 15,
2008)
An individualized education program (IEP) was established
under the Individuals with Disabilities Education Act (IDEA) to help an
autistic student. A court found
the IEP reasonable under the IDEA despite the fact that the student had not
demonstrated a generalized performance of the skills learned at school to other
social settings and remained emotionally uneven and occasionally violent at
home and in public places. The court ruled that generalization across settings
is not required if a student is making some progress in school under an IEP.
Source: Westlaw
Watch (Sept. 16, 2008)
Wright
v. The Dallas School District (3rd Cir. July 8, 2008)
A
Pennsylvania school board decided to quit employing a substitute teacher. Consequently, the teacher brought a due
process claim against the school and its superintendent. The claim failed, though, because the
substitute teacher did not have a property interest entitling her to due
process protections; i.e., the teacher had not guaranteed right to continued
employment – a vital element to a property interest in oneÕs job.
Source: Westlaw Watch (Oct. 1, 2008)
N.B.
v. Hellgate Elementary School (9th Cir. Sept. 4, 2008)
A
Montana school district failed to fulfill its obligations under the Individuals
with Disabilities Education Act (IDEA) by not evaluating an elementary student
for all learning disabilities, including autism. After the studentÕs parents obtained a diagnosis of autism
from sources outside the school, the school refused to require extended school
year (ESY) services for the child.
As a result, the studentÕs parents refused to enroll him in that school;
they demanded and were give a due process hearing at the school. Their due process claims were denied by
the school and later by a district court.
However,
the Ninth Circuit Court of Appeals overturned the two prior decisions holding
that the school district failed to meet its obligation under the IDEA to
evaluate the student for autism because the Act requires testing Òin all areas
of suspected disability.Ó Thus, it
was impossible for the school to satisfy the goals of the IDEA and provide the
child with the FAPE to which he was entitled. Consequently, the school district was forced to pay for the
costs of services incurred for the school year and their associated legal fees.
Source: National School Boards Association,
Legal Clips (Sept. 25, 2008)
Brammer-Hoelter
v. Twin Peaks Charter Academy (Colo. Dist. Ct. Aug. 25, 2008)
A
group of teachers brought First Amendment retaliation claims against a charter
school principal. The teachers
alleged the principal retaliated against them by giving them negative work
reviews and restricting, by oral directive, some of the speech and associations
of the teachers regarding school issues.
However, the Colorado district court found in favor of the principal,
holding that the restrictions she imposed on the teachers were reasonable and
within her powers. Therefore, the
principalÕs actions were not unconstitutional and she was entitled to qualified
immunity.
Source: Westlaw Watch (Oct. 2, 2008)
Woodlock
v. Orange Ulster B.O.C.E.S. (2nd Cir. June 17, 2008)
A
school counselor claimed civil rights violations against a school for the
alleged retaliatory actions it took against her for what she claimed was free
speech protected under the First Amendment. The counselorÕs claim failed, though, because her speech was
related to her job and therefore was not protected speech for purposes of a
First Amendment retaliation suit against the school principal.
Source: Westlaw Watch (Sept. 5, 2008)
Lowry
ex rel. Crow v. Watson Chapel Sch. Dist. (8th Cir. Sept. 2, 2008)
A
group of students, unhappy with the school districtÕs newly imposed dress code,
wore black armbands to protest the policy. The school disciplined those who wore the armbands and, in
so doing, violated the studentsÕ First Amendment right to Free Speech because
the armbands caused no material disruption or substantial interference with the
school, according to the Eighth Circuit Court of Appeals, which upheld a lower
court decision.
Source: Westlaw Watch (Sept. 5, 2008)
Weinbaum
v. City of Las Cruces, N.M., (10th Cir. Sept. 12, 2008)
Two
residents of Las Cruces, New Mexico, brought suit against the city of Las
Cruces and the Las Cruces School District because of the city and school
districtÕs use of crosses in various public displays. The residents claimed the use of the cross in school
violated the Establishment Clause by endorsing Christianity. The Tenth Circuit Court of Appeals held
otherwise, though, because the crosses were associated with the cityÕs name,
which translated means, ÒThe Crosses,Ó and was derived from the make-shift
cemetery near the site of the original city.
Source: Westlaw Watch (Sept. 25, 2008)
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