Legal Instruction
and Support for School Leaders
School
e-Law Update
November 3, 2008
Volume 08-11
Headline Links
(Click the header links
below to view full summaries)
Cases and News
Affecting North Carolina Schools
á
Students – Discrimination –
Athletics: Court upholds ruling
allowing university to cut athletic programs under Title IX.
á
Personnel – Sex Discrimination: School settles
discrimination claim involving unwed pregnancy.
Cases & News from
other Jurisdictions
á
Special
Education – IEP – Regular
Placement: Disabled
student's IEP complied with IDEA's requirement that he be placed in least
restrictive environment.
á
Student Speech – Literature Distribution: Court
upholds districtÕs viewpoint-neutral restriction on hallway literature
distribution.
á
Cyberlaw – Safety: Parents and schools sometimes at
odds over extent of student Internet access.
Cases and News
Affecting North Carolina Schools
Students –
Discrimination – Athletics:
Court upholds ruling allowing university to cut athletic programs under
Title IX. Equity in Athletics,
Inc. v. U.S. Dept. of Educ., No. 07-1914 (4th Cir. Aug. 28, 2008)
[Unpublished]
The
Fourth Circuit Court of appeals, in an unpublished opinion, upheld a lower
court decision not to enjoin James Madison University in Virginia from
eliminating a number of male and female athletic teams. The University decision was an
effort to comply with Title IX of the 1972 Educational Amendments to foster
equitable gender participation in student athletics. The potential harm to the students affected was
not greater than the potential harm to the university if it were found to be in
violation of Title IX. In
addition, there was a strong public interest involved in allowing the
university discretion to determine what athletic opportunities to offer
students. Source:
Westlaw Watch, Nov. 7, 2008. Read the case.
A
school employee was terminated by a Tennessee school system after 30 years of
work in the school. Although
she never filed a sexual harassment complaint, the employee contended she was
subject to retaliatory dismissal after being questioned by school officials
investigating other employees' allegations of harassment against the human
relations director. The
employee claimed that she was terminated because of her participation in the
investigation.
The
issue before the United States Supreme Court is whether the anti-retaliation
provisions of Title VII apply not just to victims who report harassment, but
also to non-victims, like the plaintiff, who merely cooperate in an
investigation. According to one
news report, the Justices generally expressed support for the plaintiffÕs
position, but it remains in question how broadly the Court will rule. Source:
Associated Press, Oct. 8, 2008.
A
group of high school students in Durham Public Schools (DPS) sued the
principals, superintendent, Board of Education, and select law enforcement
officials working in connection with the high schools, for due process
violations stemming from suspensions delivered by school officials. In addition, the students claimed the
gang policy published by DPS was unconstitutionally vague.
The
North Carolina Court of Appeals heard the case after a Durham County Superior
Court judge dismissed all the studentsÕ claims contained in a 575 paragraph
pleading. The Court of Appeals
upheld the trial courtÕs finding that the plaintiffs failed to provide
sufficient evidence that any school principal, the superintendent, or the
school board had violated the due process rights of any student. In so holding, the court referred to a
U.S. Supreme Court case indicating that a student must receive some process prior to being
suspended, but generally speaking, merely being informed of the reason for the
suspension and having an opportunity to present his/her version of the facts is
sufficient. In this case, there
was no evidence that any student was denied his/her rights. Additionally, the school superintendent
was immune from responsibility for the actions of her subordinates under the
supervisory liability theory because there was no indication that she had any
knowledge that any subordinate employee was engaged in conduct posing
Òpervasive and unrecognizable risk of constitutional injuryÓ to students. Even if she had such knowledge,
plaintiffs would have been required to show Òdeliberate indifferenceÓ in light
of her knowledge and an Òaffirmative causal linkÓ between her inaction and any
constitutional injury suffered by plaintiffs.
Similarly
the court held that plaintiffs failed to prove any violation of their equal
protection rights. Plaintiffs
failed to show any unequal treatment existed or that any unequal treatment
resulted from intentional or purposeful discrimination.
Lastly,
the court held that the gang policy of DPS was unconstitutionally vague on its
face. However, the court noted the
possibility that DPS might be able to overcome this finding in another court by
including the student handbook and the Ôlist of prohibited itemsÕ referenced in
the policy but not included in the record before the court. Read
the case.
A
Federal Court in North Carolina dismissed a series of claims against the
Charlotte-Mecklenburg Schools Law Enforcement Department (LED), which was
alleged to have failed to report inappropriate conduct by an adult employee of
the school district with a minor student to the proper authorities under North
Carolina law. Plaintiff claimed
the LED (including the individual officers involved in the investigation) had
negligently performed its law enforcement duties and negligently supervised and
retained the employee involved in the incident. Additional state and federal constitutional claims were made
against the school board, but those were not before the court in this decision,
which focused solely on the LED.
The
Court ruled for the LED finding that it was not a valid party for the plaintiff
to sue because there is no North Carolina law that permits suits against LEDs
to proceed. The plaintiff also
maintained the LED was negligent in failing to report allegations of abuse to
the Department of Social Services (DSS).
While it is true that North Carolina has a mandatory reporting law [NCGS
115C-400], the statute does not impose a universal responsibility to report
on all persons. Instead, NCGS 7B-301
requires reporting to DSS only abuse inflicted by a parent, guardian,
caretaker, or custodian. Abuse by
a teacher, therefore, is not required to be reported unless one of two
exceptions applies: (1) a special relationship exists between the injured party
and the police; and (2) when a municipality creates a special duty by promising
to protect an individual.
Previous
courts have found Òspecial relationshipsÓ between students and school crossing
guards and school resource officers, both of which are responsible for student
safety on a day-to-day basis. The
court in the present case declined to apply the special relationship exception
because the officer who investigated the alleged incident was an officer from
outside the schoolÕs LED. Thus, he
was not responsible for student safety in the particular middle school in
question on an ongoing basis and the court, therefore, decided the special relationship
exception was inapplicable.
Moreover, the plaintiff did not allege a Òspecial dutyÓ existed, so the
court did not grant this exception either. The court did note, however, that the special duty exception
requires that an actual promise be made to plaintiff, plaintiff must reasonably
rely on such promise, and plaintiffÕs ultimate injury must be causally related
to the reliance.
The
court also dismissed the negligent retention and supervision claims against the
LED because plaintiff must Òprove that the incompetent employee committed a
tortious act resulting in injury to plaintiff and that prior to the act, the
employer knew or had reason to know of the employeeÕs incompetency.Ó However, the school district, and not
the LED, employed the teacher, so a claim against the LED was inappropriate.
Lastly,
the individual employees of the LED were sued in their individual capacities
for negligent performance of their duties. However, the general rule of the state is that law a
enforcement official is Òimmune from personal liability for mere negligence in
the performance of his duties, but not shielded from liability if his alleged
actions were corrupt or malicious or if he acted outside and beyond the scope
of his duties.Ó Since plaintiff
did not allege any corrupt or malicious action by the officers, or that the
officers acted outside the scope of their duties, the court rejected this claim
as well.
In
the final chapter of a lengthy court fight over a career-development
coordinatorÕs salary increase on account of her National Board certification,
the North Carolina Court of Appeals overturned a Superior Court decision that
allowed the NC State Board of Education (BoE) to refuse to give the ÔteacherÕ
an increased salary.
As
previously reported in these Updates (December 2007), the NC Supreme
Court handed the case back to the Court of Appeals because the Court of Appeals
had previously overruled the trial court for an unwarranted reason (too much
deference to the BoE). Nevertheless,
the Court of AppealsÕ ruling was unchanged. It found that the school employee was a ÒteacherÓ and
therefore was entitled to a salary raise under North Carolina law. Read
the case.
The
Fourth Circuit Court of Appeals upheld a lower courtÕs summary judgment verdict
in favor of a Virginia school board on charges that it wrongfully terminated an
employee. The employee claimed,
under Title VII of the Civil Rights Act, that the school board discriminated
and retaliated against her based on her race. Plaintiff claimed that her comments during an interview
panel meeting that two African-American candidates were being treated unfairly
compared to two white candidates resulted in her retaliatory firing.
In
finding for the school board, the court determined that the employee failed to
prove the required elements of a retaliation claim under Title VII: (1) that she engaged in protected
activity under the Act; (2) the employer took adverse employment action against
her (this was not in question), and (3) there was a causal connection between
the protected activity and the subsequent action taken by the school board.
The
court went on to state that even if plaintiff had alleged a valid civil rights
claim, the school board would have been justified in terminating her employment
because of documented legitimate and non-discriminatory reasons including
concerns about her Òleadership ability and her promptness in responding to
requests from superiors [and an inability] to provide [her supervisors] with continually
updated data regarding personnel hires, remaining vacancies, and outstanding
offer letters, which [were] crucial to the performance of her job.Ó Read the case.
The
North Carolina Court of Appeals recently re-examined a case from Alamance
County involving a young boy who was struck and killed by a school bus just
after being dismissed from school (previously
examined in the July 17, 2008 Update). In another procedural decision, the Court of Appeals held
that the North Carolina Industrial Commission was the proper body to hear
plaintiffÕs claims. Additionally,
the court upheld its ruling that the claims against the school board were
barred by sovereign immunity.
Thus, the Court of Appeals ordered the trial court to grant a motion to
dismiss all claims in favor of the school board. Read
the case.
A former teacher of the
Gaston County Schools sued the school system, alleging she was demoted from
teaching at a high-performing elementary school to a position teaching in at an
at-risk school. She claimed
she was illegally discriminated against because, at the time of her demotion,
she was dating another teacher and became pregnant as a result. She alleged that an assistant
superintendent accused her of ÒimmoralÓ conduct and demanded to know when the
two would marry. The school
board contended that, under state law, the transfer was not a ÒdemotionÓ
because the teacherÕs pay was not reduced.
The parties agreed to
settle the suit for $99,500 without admission of liability. The attorney for the School System
explained the boardÕs action as a Òbusiness decision.Ó According to the report, the
county will pay half of the settlement award ($49,500) and the AIG Insurance
Company will pay the other half.
Of the total, $48,090 is for the plaintiffÕs attorney fees. Source: Charlotte Observer, Oct.
22, 2008.
Cases and News of
Interest from Other Jurisdictions
(Not binding on North
Carolina Schools)
A school district's decision to not provide a disabled student
with special education transportation to and from summer school did not deny
the student a free appropriate public education (FAPE) under the Rehabilitation
Act. The student's individualized education program (IEP) found that the
student was not eligible for extended school year (ESY) services. Source: Westlaw Watch, Oct. 16,
2008. Read the case.
A
studentÕs IEP calling for placement in a regular classroom 74% of the time
(instead of 80%) was consistent with the IDEAÕs least restrictive environment
requirement. The evidence
sufficiently indicated that education in a regular classroom would not be
satisfactory. Source:
Westlaw Watch, Oct. 11, 2008. Read
the case.
A
federal appellate court upheld a Michigan school districtÕs literature
distribution restrictions. The
district prohibited a middle school student promoting pro-life activities,
including a Pro-Life Day of Silent Solidarity, from distributing anti-abortion
literature in the hallways during the school day. The student distributed several leaflets and was ordered by
the principal to cease the activity because it was not
"age-appropriate," was "disruptive," and because
"prior approval" was not given as required by the schoolÕs
policy.
After
filing suit, the district eventually agreed to permit distribution during lunch
at a single table and to post hallway flyers on student bulletin boards. The
suit continued to challenge, however, the prohibition against hallway
distribution. Although
recognizing the schoolÕs authority to impose appropriate Òtime, place, and
mannerÓ restrictions on non-school sponsored literature distribution, the plaintiffs
contended that distribution should be allowed since it would not result in a
Òmaterial disruption.Ó The
plaintiff also contended that the rule was vague, overbroad, and unreasonable.
The
federal district court issued a permanent injunction and awarded nominal
damages in favor of the student, determining there was insufficient evidence of
material disruption. The Court of
Appeals reversed in favor of the school system. The court noted that public school hallways are Ònonpublic
forumsÓ subject to broad discretionary regulation by school officials. There was no indication that students
had turned the hallways into an expanded forum for indiscriminate use. The court found that school officials
did not manifest any Òdesire to suppress [the studentÕs] anti-abortion
viewpoint.Ó In addition, the prior
approval requirement was reasonable and the policy term precluding distribution
of ÒinappropriateÓ materials was
not too vague in restricting materials that contained unprotected speech. The court distinguished the 1969 Tinker
(ÒSubstantial DisruptionÓ) case noting that officials in that case sought to
suppress speech based on the speakerÕs viewpoint; whereas, in this case, the
restriction was simply a viewpoint-neutral Òtime, place, and mannerÓ rule. The court concluded the school system
Òcertainly need not satisfy this demanding [Tinker] standard merely to impose a
viewpoint neutral regulationÉto prevent hallway clutter and congestion.Ó
Furthermore, imposing a Tinker standard would lead to school officials having
Òless discretion over the use of school facilities than is exercised by any
other public entity over any other forum on public property.Ó Source: National School Boards Association,
Legal Clips, Oct. 9, 2008. Read the case.
A
recent news article notes a conflict between school officials and parents
regarding the extent to which Internet access should be available to students.
Officials in the Wake County schools contend that the InternetÕs value
precludes barring students from its use, despite parentsÕ request to prohibit
access for their children.
The system's chief technology officer states Òthere are educational
situations where a child needs to go on the Internet with
supervision." One parent
recently filed a grievance that was denied by the Wake school board. Said the parent, "The denial of
access form is meaningless if they're going to ask if you want to deny access,
then they should stand by their word."
The
director of North CarolinaÕs Virtual Public School comments, "How do you
prepare students to be globally competitive in the 21st century without them
having Internet access?"
Research, communications, and even testing are taking place,
increasingly, online. Given
budget constraints, the Internet also makes more sense than other expensive
educational resources. All
parties acknowledge that Internet filters cannot block all inappropriate
materials, so it becomes a matter of degree of risk and affect.
The
Wake board policy allows teachers to provide supervised Internet access for
in-class activities. The Johnston County school system allows concerned parents
to participate with their child in online activities to assure their childÕs
protection. The Chapel
Hill-Carrboro system leaves the decision to individual school leaders with
teachers expected to collaborate with parents. The Durham system offers alternative
activities in such instances.
Source:
News & Observer, October 7, 2008.
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