April 2010
Alabama Supreme Court
Open Meetings Act/Notice
Underwood v. Alabama State Bd. of Educ., --- So.3d ---, 2009 WL 4506578 (Ala. Dec. 4, 2009)
Three citizens sued the State Board of Education, its members and the Governor for violating the Open Meetings Act during a meeting at which the board appointed the chancellor. Specifically, the citizens claimed that the board’s posted notice did not adequately state that a chancellor would be appointed at the meeting. The notice stated that the board would hold a special meeting “to accept the resignation of the interim chancellor and consider the administration of the Alabama Department of Postsecondary Education and the Alabama College System.” After the trial court ruled in favor of the defendants and held that the notice was sufficient, the citizens appealed. However, while the appeal was pending before the Supreme Court, the chancellor resigned. The citizens argued that this did not moot their appeal as they only sought a declaration that the board’s notice was deficient, not necessarily a revocation of the chancellor’s appointment. However, the Supreme Court determined that the substance of the citizens’ request sought a revocation of the appointment, no matter how they couched it in their complaint. Given this determination and the chancellor’s resignation, the court decided the appeal was moot since his appointment could no longer be revoked.
Title IX/Sexual Assault
J.B. v. Lawson State Community College, 2009 WL 1819331 (Ala. Jun. 26, 2009)
J.B. was a 19-year-old student and member of her college basketball team. Late one night while staying at a motel after an away game, she was raped by one of her assistant coaches. The coach was eventually convicted of rape and sentenced to a long prison term. J.B. sued the college for violation of Title IX, and the coach’s supervisors – including the college president, the athletic director and the head coach – for violation of her civil rights. The defendants filed motions for summary judgment. The trial court ruled for the defendant, and J.B. appealed.
Title IX allows damages to be assessed when a teacher sexually harasses a student, but only if a school official with the authority to correct the behavior “has actual notice of, and is deliberately indifferent to” the harassment. Quoting Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). Here, the supervisors could be held liable pursuant to §1983 if they knew the coach would likely attempt to sexually abuse students and they failed to take adequate precautions. Accordingly, the Supreme Court examined the supervisors’ knowledge.
In 2003, a student alleged that the coach touched her backside. While the student confronted the coach and told some of her teammates about the incident, no one reported this incident to the supervisor-defendants. That same year, J.B. began attending the college on a basketball scholarship. J.B. and the coach knew each other prior to her enrollment at the college. He had been her coach in high school, chaperoned her team during away games and traveled with his family and J.B. to watch his daughter play basketball. After she came to the college, J.B. and the coach continued to spend a great deal of time together. He drove her to and from classes, and she spent time with him and his family at his home. The supervisors admitted they were aware of this relationship and had some concerns, but when they confronted the pair, both J.B. and the coach denied that the relationship was sexual. It was undisputed that the college had a published sexual harassment policy and that J.B. never complained to anyone about her relationship with her coach.
In her suit, J.B. alleged that the athletic director failed to properly investigate the 2003 incident between the coach and the other student. She also alleged that the athletic director failed to investigate J.B.’s inappropriate relationship with the coach. As to the 2003 incident, the court recognized that because neither the athletic director nor head coach were even aware of the incident, there could be no finding that they ignored it. The court further found that the defendants were not deliberately indifferent when they failed to intervene in J.B.’s personal relationship with the coach. The court cited the fact that J.B. never complained to anyone about the assistant coach until she made her allegation of rape. The court also noted that the college’s policy specifically excluded consenting relationships from the definition of “sexual harassment.”
As to the college president, the court held that because the athletic director and coach’s responses were not deliberately indifferent, the president could not be held liable for ratifying their actions. Summary judgment was upheld for all defendants.
Constitutional Immunity/Breach of Implied Contract
Ex parte Hale County Bd. of Educ., 14 So.3d 844 (Ala. Jan. 16, 2009)*
In this case, the board was sued by a spectator who fell from the bleachers during a high school basketball game. He asserted various tort claims, as well as a claim alleging breach of implied contract based upon his purchase of the ticket to the game. The trial court granted the board’s motion for summary judgment on all tort claims but denied it as to the breach of implied contract claim, citing Sims v. Etowah County Bd. of Educ., 337 So.2d 1310 (Ala. 1976). The board filed a petition for writ of mandamus with the Alabama Supreme Court.
Section 14 of the Alabama Constitution provides that “the State of Alabama shall never be made a defendant in any court of law or equity.” County boards of education are not agencies of the counties but local agencies of the state charged by the Legislature with the task of supervising public education within the counties. The Supreme Court reversed the trial court and took the opportunity to reassert the absolute constitutional immunity of county boards of education, citing Board of School Commissioners of Mobile County v. Architects Group, Inc., 752 So. 2d 489, 491 (Ala. 1999). “Under Ala. Const. of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the State.” Because county boards of education are local agencies of the state, they are protected by constitutional immunity from suit. The Alabama Supreme Court therefore overruled both Sims and Kimmons v. Jefferson County Board of Education, 85 So. 774 (Ala. 1920) to the extent that they and their progeny impose an implied “right to be sued” on county boards of education.
Open Records Act/Justiciability
Fenn v. Ozark City Schools Bd. of Educ., 9 So.3d 484 (Ala. Nov. 21, 2008)
While this case was largely procedural in nature, it is useful in determining how to handle situations in which a board may be seeking court guidance. In this case, the local newspaper sought disciplinary information from a teacher’s personnel file pursuant to the Open Records Act. Both the teacher and the board argued that the records were not subject to disclosure under the act. Thereafter, the teacher filed a “friendly” declaratory judgment action against the board and asked the trial court to declare that the board did not have to turn the information over to the media. The trial court ruled that the records were subject to disclosure and the teacher appealed. The Supreme Court voided the trial court’s opinion and declared that, because the parties to this action were in agreement, there was no controversy and therefore the case lacked justiciability.
Alabama Court of Civil Appeals
Fair Dismissal Act/Reduction in Force
Mobile County Bd. of School Commrs. v. Long, --- So.3d ---, 2010 WL 876717 (Ala.Civ.App. March 12, 2010)
As a result of budgetary concerns, the board implemented a reduction in force and eliminated a number of jobs throughout the system. Many positions were eliminated, including an employee that was terminated from his position as a programmer. The employee contested the action, and a hearing was conducted. The employee claimed that the board failed to follow its RIF policy in selecting him for termination because there was a probationary employee in the same department holding a position for which he was qualified. The board argued that the employee was not qualified to hold the other position. The hearing officer reversed the termination on the grounds that the board failed to properly apply the RIF policy. The board appealed to the Court of Civil Appeals.
On appeal, the board argued that whether or not it followed its RIF policy was immaterial since it presented undisputed evidence of a justifiable decrease in jobs. The court disagreed noting that boards of education are bound to comply with their own policies. Alternatively, the board argued that it had, in fact, complied with its RIF policy. After a careful review of the facts and the board’s RIF policy, the court agreed that the board complied with its policy when it chose to terminate the employee. Specifically, the court determined that the employee failed to present evidence that he was qualified for the position held by the probationary employee and was properly terminated under the RIF. Therefore, while the court found that the hearing officer had properly considered whether the board complied with its RIF policy, the court found that the hearing officer erred in finding that the board had not complied with the policy. Accordingly, the court reversed the hearing officer’s decision.
Fair Dismissal Act/Nonprobationary Status
Murphy v. Madison City Bd. of Educ., --- So.3d ---, 2010 WL 58287 (Ala.Civ.App. Jan. 8, 2010)
The plaintiff was employed by the county board for three years before separating from the board. Several years later, after a city board was formed, the plaintiff was hired by that board. After working for the city board for three years, she was nonrenewed. She sued the city board for wrongful discharge and claimed that her city and county employment terms should have been treated as one term for purposes of determining her nonprobationary status. The trial court entered summary judgment in favor of the board and the employee appealed.
The employee argued that because the city board was formed out of the county board, the terms should have been combined. While it was undisputed that the Fair Dismissal Act did not require employment to be consecutive or continuous for purposes of determining nonprobationary status, the court disagreed with the employee and found that the city board was not formed out of the county board. Rather, the court determined that the city board was formed independently and the city and county boards then entered into an agreement for the city board to take control of schools within the city.
The employee also argued that the city board agreed to treat her as a nonprobationary employee. However, the court found that the city board entered into that agreement at the time of its formation when it hired county board employees who were employed at the time of its formation. Because the plaintiff was not a county board employee at that time, she could not take advantage of that agreement.
Lastly, the employee argued that the city board agreed to treat her as a nonprobationary employee because it compensated her based on her years of experience with the county board. The board countered that all employees are compensated based on their experience with previous boards of education, not just experience in the county board.
Based on these reasons, the court agreed with the board and upheld the trial court’s judgment.
Direct Appeal/Lack of Certification
Birmingham City Bd. of Educ. v. Hawkins, --- So.3d ---, 2009 WL 4980329 (Ala.Civ.App. Dec. 18, 2009)
This case addresses whether a tenured teacher that loses certification is entitled to the protections of the Teacher Tenure Act. In this case, the teacher taught under a valid certificate for several years and gained tenure in her position. When her certificate came up for renewal, she failed to renew the certificate, and it expired. After numerous attempts to bring the teacher into compliance, the board nonrenewed the teacher and declined to give her a hearing. At the time of her nonrenewal, the teacher had been employed by the board for over 14 years.
The teacher filed a direct appeal with the chief administrative law judge and claimed that she was entitled to the protections of the Teacher Tenure Act, or in the alternative, the Fair Dismissal Act. The board argued that the teacher was no longer a “teacher” as defined by the Teacher Tenure Act because she was not certificated. The board further rejected the assertion that she was protected by the Fair Dismissal Act. The ALJ ruled in favor of the teacher and determined that once she gained tenure, she could only be terminated pursuant to the provisions of the Teacher Tenure Act. The board sought review in circuit court, and the trial court upheld the ALJ’s decision. The board then appealed to the Court of Civil Appeals.
The Court of Civil Appeals looked to a decision by the Colorado Supreme Court which considered the same issue regarding a similar Colorado statute. Frey v. Adams County School District No. 14, 804 P.2d 581 (Colo. 1991). That court looked to the Legislature’s intent to provide protection to teachers once they gain tenure. In light of this intent, the Colorado court determined that the board’s reading of the definition of “teacher” and the tenure law was too narrow and literal and was contrary to the Legislature’s intent. That court held that an otherwise tenured teacher did not lose that tenure merely because he lost his certification.
The Court of Civil Appeals was persuaded by Colorado’s interpretation and determined that its decision did not conflict with the precedent set by the Alabama Supreme Court in Barger v. Jefferson County Board of Educ., 372 So.2d 307 (Ala. 1979). Barger upheld the board’s decision to summarily terminate a teacher whose certificate had lapsed stating, “In light of the clear statutory mandate that certification is a condition precedent to employment as an instructor…the trial court did not err in refusing to reinstate the [teacher].”
Despite the holding of Barger, the Court of Civil Appeals determined that the teacher did not automatically lose her rights under the Teacher Tenure Act when she lost her certificate and upheld the trial court and ALJ.
Teacher Tenure Act/Remand Instructions
Ex parte Wilson, --- So.3d ---, 2009 WL 5149268 (Ala.Civ.App. Dec. 30, 2009)
This case has a long and complicated history in Alabama’s appellate court system. For the sake of brevity, only the relevant portions of the history will be recounted. In 2005, after the board terminated the teacher (who was also the cheerleading coach) for violating board policies, the hearing officer reinstated her. The board appealed to the Court of Civil Appeals which reversed the hearing officer and remanded the case for a new hearing. Madison County Bd. of Educ. v. Wilson, 984 So.2d 1153 (Ala.Civ.App. 2006). The Supreme Court affirmed. Ex parte Wilson, 984 So.2d 1161 (Ala. 2007). Thereafter, the parties could not agree on whether the original hearing officer should rehear the case. The board eventually sent the teacher a letter stating that her termination was final because she had refused to participate in the process to select a new hearing officer.
After much legal wrangling, the original hearing officer scheduled a new hearing, but the hearing was not held. The teacher filed a petition for writ of mandamus with the Court of Civil Appeals seeking an order directing the original hearing officer to hold a new hearing. The teacher also sought backpay. While the court denied the petition on procedural grounds, it did rule that the original hearing officer should conduct the hearing on remand. The court found that the purpose of the 2004 amendment to the Teacher Tenure Act was to “streamline the contest and appeal processes for teachers.” “Remanding the case for a new hearing before the original hearing officer is consistent with this intention and would be judicially efficient, whereas holding a hearing before a new hearing officer unfamiliar with the case would undermine this intention.” Ex parte Wilson, at *3. In support of its decision, the court also looked to the procedure used when a case is remanded in state court. Accordingly, the case has been remanded for a new hearing before the original hearing officer.
Sovereign Immunity
Central Alabama Community College v. Robinson, --- So.3d ---, 2009 WL 4506552 (Ala.Civ.App. Dec. 4, 2009)
Three employees who worked for a training consortium operated by the college were terminated without a hearing. The employees filed a direct appeal with the chief administrative law judge. The issue before the ALJ was whether the employees were covered by the Fair Dismissal Act. That question depended on whether they were employees of the Consortium or the College. The ALJ determined that the college was the proper employer and the Fair Dismissal Act applied. The college sought review of the ALJ’s decision in the circuit court and the employees countersued for a declaration that they were entitled to full backpay. The circuit court denied the college’s petition and granted the employees the requested relief on their counterclaim. The college appealed the backpay ruling but did not appeal the ruling on the applicability of the Fair Dismissal Act. The college argued that the circuit court had no jurisdiction to consider the employees’ counterclaim because it was protected by sovereign immunity. The Court of Civil Appeals held that because the college was a state institution, it could not be made a defendant in any court. Therefore, the circuit court’s ruling on the employees’ counterclaim was void as the court lacked jurisdiction over the college.
Fair Dismissal Act/Nonprobationary Status
Franks v. Jordan, --- So.3d ---, 2009 WL 4110758 (Ala.Civ.App. Nov. 25, 2009)(opinion withdrawn and substituted with Franks v. Jordan, --- So.3d ---, 2010 WL 1260997 (Ala.Civ.App. April 2, 2010))
This employee worked continuously for various colleges in the postsecondary education system from August 2002 to August 2007 but did not work for a single college for more than three years. After working for almost three years for the last college, he was notified that he would be nonrenewed. He filed a direct appeal with the chief administrative law judge asserting that the college had improperly denied him a hearing pursuant to the Fair Dismissal Act. The ALJ ruled that he had not achieved nonprobationary status and was not entitled to the protections of the Fair Dismissal Act. The employee appealed to the circuit court which determined that the employee did not have to work for a single two-year institution to be covered by the Fair Dismissal Act. The college appealed.
The Court of Civil Appeals initially ruled in favor of the employee in Franks v. Jordan, --- So.3d ---, 2009 WL 4110758 (Ala.Civ.App. Nov. 25, 2009). The Court compared the language of the Teacher Tenure Act, which required employees work for three consecutive years for the same school system. The Fair Dismissal Act had no such limiting language. Additionally, the Teacher Tenure Act required that the work be consecutive while the Fair Dismissal Act did not. Therefore, the court held that there was no indication that the Legislature intended employees to work for the same two-year college for three consecutive years to receive Fair Dismissal Act protection.
The college asked the Court of Civil Appeals to reconsider its ruling, and the court reversed its earlier holding and withdrew its Nov. 25, 2009, opinion. On rehearing, the court considered the definition of “employing authority” as used in Ala. Code §36-26-101. The employee argued that the “employing authority” was the state Board of Education, but if that were true, he would have no protection because the state board was not an entity covered by the act. Holland v. Pearson, 20 So.3d 120 (Ala.Civ.App. 2008) (employees of entities not listed in Ala. Code §36-26-100 are not covered by the act). The court determined that the Legislature could not have intended this result. Therefore, based on the rules of statutory construction, the court could not read the act to permit employment stints to be combined from college to college.
As an example of why this would be an unjust result, the court reasoned that an employee could gain nonprobationary status at College A and then be hired by College B and automatically gain nonprobationary status even though College B had no opportunity to assess the value of the employee. Similarly, if the employee worked for two years at College A and then a third year at College B, the employee would automatically gain nonprobationary status without College B having a three-year period to evaluate the employee.
Based on these findings, the court held that employees start a new probationary period upon their hire by a different employing authority. Accordingly, the employee did not work for a single college for more than three years, and therefore was not entitled to the protections of the act.
Circuit Court Opinions
Open Meetings Act
Clay Slagle v. Beverly Ross, CV-2009-1846 (Montgomery Circuit Court Jan. 28, 2010)
This case was filed as a result of the board’s superintendent search. The plaintiff, an unsuccessful candidate for the position, claimed that the board violated the Open Meetings Act on two occasions by not providing notice of the meetings to the public and not recording the meetings. On the first occasion, four members of the board were present at a meeting with other elected officials to discuss community issues. When the members realized there were four members of the board present, one member left. On another date, members of the board met to discuss the search, but there were never more than three members present at a time.
The trial court noted that there is no “meeting” as that term is defined in the Open Meetings Act unless there is a quorum present. Since this was a seven member board, four or more members would have to be present to have a quorum. Inasmuch as there were never more than three members present at each of the challenged gatherings, the trial court held that there was no violation of the Open Meetings Act. The plaintiff has appealed the court’s ruling.
Ethics Opinions
Conflict of Interest
Ethics Commission Advisory Opinion Number 2010-01 (Feb. 3, 2010)
This opinion was requested by the Birmingham-Jefferson County Transit Authority. After the executive director resigned, the authority began the process of seeking, recruiting and evaluating a new executive director to fill the vacant position. The chairman of the authority had extensive involvement in the hiring process, including developing criteria, determining the decision makers and reviewing candidate résumés. After the authority was unable to fill the position, the chairman resigned from the authority and then applied for the vacant position. The chairman also approached members of the authority indicating his interest in the position. The authority requested this opinion and asked if the chairman’s application would violate Ala. Code §36-26-5(a), which states that a public official cannot use his position for personal gain.
Under the facts of this situation, the commission determined that the chairman’s prior involvement in the hiring process gave him an unfair advantage over other candidates such that there was no level playing field. The commission further determined that it would be a violation of Ala. Code §36-25-13(a) for the chairman to approach members of the authority to lobby on his own behalf for a period of two years. However, the commission noted that a third party could lobby on the chairman’s behalf to the authority.
United States Supreme Court
Title IX/Sexual Harassment
Fitzgerald v. Barnstable School Committee, --- U.S. ---, 129 S.Ct. 788 (Jan. 21, 2009)*
In 2001, a kindergarten student told her parents that one of the older boys on the school bus was harassing her. Her parents immediately contacted the principal to complain, but they were unsatisfied with both his investigation and response. The principal suggested that he either would move the young girl to another bus or separate the kindergartners from the older students by several rows of seats. Thereafter, the parents opted to drive their daughter to school each day, but the girl continued to report that the boy was harassing her during the school day.
The parents filed suit against the school committee and the superintendent under both Title IX claiming gender discrimination and §1983 claiming civil rights violations. The trial court dismissed the §1983 claim, finding that Title IX was the sole remedy for the sexual harassment of students. The case proceeded against the school committee under Title IX alone, and the trial court eventually granted the defendants summary judgment. The First Circuit affirmed and the parents appealed to the U.S. Supreme Court. The court granted certiorari to resolve a conflict among the circuits on this issue.
The Supreme Court held that Title IX does not preclude §1983 actions alleging Equal Protection Clause violations arising from sex discrimination in schools. It noted that §1983 claims for some constitutional rights are barred where Congress intended a civil rights statute’s remedial scheme to be the exclusive avenue for relief but found that this was not the case with Title IX. It found that Title IX does not create a comprehensive remedial scheme for sex discrimination in schools and determined that because Title IX’s protections are narrower in some respects and broader in others than those guaranteed under the Equal Protection Clause, Congress did not intend Title IX to serve as the sole means of correcting unconstitutional gender discrimination in school settings. The court reversed the judgment of the First Circuit and remanded the case for further proceedings.
Eleventh Circuit Court of Appeals
Title VII/ADA
Armbrester v. Talladega City Board of Education, 325 Fed.Appx.877 (11th Cir. May 11, 2009)*
The plaintiff, an African-American female bus driver over the age of 40, hurt her neck in 2004. After her injury, she provided a note from her doctor instructing her to avoid any physical activity that required her to push or pull heavy objects. This restriction would include unlocking or lifting the hood of her bus, one of the duties required of bus drivers before every shift. Eventually, her doctor released her to resume the physical responsibilities of her job. Later, the board attempted to terminate her for job performance issues, including speeding, unsafe driving practices, parent complaints, repeated failure to drop off students on time and failure to pick up students on her route. This termination, however, was reversed by an arbitrator who determined that a 20-day unpaid suspension was sufficient punishment. Thereafter, the employee sued the board for age, race and disability discrimination. The trial court granted summary judgment to the board, and the employee appealed.
Because there was no direct evidence of discrimination or retaliation, the 11th Circuit applied the traditional McDonnell Douglas burden-shifting framework. Under that framework, the employee was first required to establish a prima facie case of discrimination and retaliation. The burden then shifted to the board to articulate legitimate, nondiscriminatory reasons for its action. Finally, the burden shifted back to the employee to prove that the board’s stated reasons were pretextual. The court found that even if the employee established a prima facie case for discrimination, the board proffered legitimate, nondiscriminatory reasons for its actions. The employee’s inability to lift the hood of her bus prevented her from being able to perform one of the duties of her job and further was indicative of her potential inability to help a student in an emergency. Additionally, the board terminated her because she continued to engage in unsafe driving practices, refused to follow the directions of her superiors, jeopardized the safety of her students and failed to pick up some students on her bus route. The court found that these proffered reasons were legitimate. Given that the employee offered nothing to rebut these legitimate reasons, the court affirmed summary judgment for the board.
U.S. District Court Opinions
Equal Protection/Residency Requirements
Willard v. Baldwin County Board of Education, 2010 WL 31798 (S.D.Ala. Jan. 4, 2010)
In this case, the parents of a 15-year-old boy signed a “Delegation of Parental Authority” purporting to give temporary custody of the boy to his aunt who lived in Baldwin County. The aunt attempted to enroll the student in her local high school, but the school’s administrators refused, citing the board’s policy that said non-parents could not enroll children without a court order transferring custody or guardianship. Absent a court order, a non-parent would have to get the consent of the assistant superintendent to enroll a student. Thereafter, the student, his aunt and his parents sued the board claiming that the policy violated their rights to equal protection and due process. The board moved to dismiss the complaint.
The court rejected the plaintiffs’ claim that the board’s policy treated him differently than children who live with their parents in violation of his right to equal protection. The court found that a bonafide residency requirement did not violate the Equal Protection Clause because the board has a legitimate interest in making sure that its services are used by legitimate residents of the county. The court also noted with approval that boards may place residency restrictions on students to prevent parents from shuffling their children to another county, so they could attend “preferred” school systems or schools.
The plaintiffs also argued that the policy violated their right to due process because it did not provide an avenue for appeal or review. The court rejected that claim as well, finding that the plaintiffs could not demonstrate that the ability to appeal would change the outcome.
The court dismissed the suit, and the plaintiffs have filed a notice of appeal with the 11th Circuit.
Title IX/Sexual Harassment
C.C. v. Monroe County Board of Education, 2009 WL 4456356 (S.D.Ala. Nov. 25, 2009)
This opinion was issued after this case was remanded by the 11th Circuit. In this case, after learning of one student’s allegation that the teacher had molested her, the principal convened a meeting with the student, her mother and the teacher. The teacher denied the allegations. Thereafter, the principal occasionally looked in on the teacher’s classrooms and watched his interactions with students in the hallway. A few months later, another student reported that the teacher molested her. She attempted to report the incident to the principal but was unable to do so. After her parents reported the teacher to the police, he was immediately suspended from the school.
The two students sued the board, the principal and the teacher for equal protection, due process and Title IX violations for gender discrimination. The trial court subsequently granted summary judgment in favor of the board on all counts except Title IX and granted summary judgment in favor of the principal on all counts except the equal protection and outrage claims. Specifically, the trial court found that the principal was not entitled to qualified immunity on the equal protection claim because his failure to act on the molestation allegations was outside his discretionary authority. The principal appealed to the 11th Circuit, and that court reversed the trial court holding that the principal was acting within his discretionary authority. The 11th Circuit remanded the case back to the trial court to determine the second prong of the qualified immunity determination – whether his actions, or lack thereof, violated clearly established law.
On remand, the trial court found that the students had a constitutional right to be free from sexual harassment by a teacher. The trial court also found that the principal can be held liable for such harassment under a theory of supervisory liability if he was deliberately indifferent to the student’s constitutional right to be free from sexual harassment. Given this finding, the trial court held that the principal acted with deliberate indifference. The trial court contrasted the principal’s actions here with the principal’s actions in Davis v. DeKalb County Sch. Dist., 233 F.3d 1367 (11th Cir. 2000) who was not deliberately indifferent. The trial court found that the principal’s response here of talking with the teacher and monitoring his classroom, but not interviewing other children or complying with the sexual harassment policy, rendered him deliberately indifferent. Lastly, the trial court found that the students’ constitutional rights were clearly established such that the principal should have known that his actions, or lack thereof, would violate their constitutional rights. Based on this analysis, the trial court found that the principal was not entitled to qualified immunity and again denied his motion for summary judgment. The principal has filed a second notice of appeal to the 11th Circuit.
Section 1983/Physical Attack
L.B. v. Bullock County Board of Education, 2009 WL 248070 (M.D.Ala. Feb. 2, 2009)*
This case was brought by a ninth-grade student and his mother after the student was attacked in an unsupervised classroom by another student. The trial court found that the §1983 claims alleging civil rights violations against both the board and the teacher who should have been supervising the classroom should be dismissed because public schools generally do not have the requisite control over children to give rise to a constitutional duty to protect them. Further, “there is no concomitant duty to provide for the students’ safety and general well being.” After the trial court dismissed the federal claims against the defendants, it declined to exercise jurisdiction with regard to the remaining state law claim of negligent supervision against the teacher. The plaintiffs did not file an appeal to the 11th Circuit.
*Opinion summaries marked with an asterisk were copied in part from the “Education Law Update” provided during the 2009 ACSBA Summer Conference, with permission.
— Jayne Harrell Williams
Jayne is with the law firm of Hill, Hill, Carter, Franco, Cole & Black in Montgomery, Ala.
info@alabamaschoolboards.org
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