June 12, 2009
Eleventh Circuit Court Decisions
Individuals with Disabilities Education Act
Draper v. Atlanta Independent School System, 518 F.3d 1275
(11th Cir. March 6, 2008)
Jarron Draper was seven years old when he began attending Atlanta public schools in 1994. He could not read and did not know the sounds of the alphabet. At the recommendations of his teachers, he underwent various tests over the next several years. From the age of seven to 18, the school system attempted to address Jarron’s issues, but engaged in a series of missteps along the way.
After years of testing, misdiagnoses, misplacements and missed deadlines, Jarron’s parents finally requested a hearing with an administrative law judge to contest Jarron’s IEP. By this time, he was in the 11th grade, but reading at a third-grade level. The administrative law judge (ALJ) ruled in Jarron’s favor. The ALJ found that the school system failed to provide Jarron with an adequate education and failed to timely reevaluate him following a misdiagnosis. The ALJ gave Jarron two options: either additional, more aggressive and appropriate services provided within the school system or private school placement paid for by the school system for a set number of years. While the appeal was pending in the district court, Jarron opted for private school placement at the school system’s expense.
On appeal, the district court made the same factual findings as the ALJ and even increased the award by extending the term for which Jarron could attend private school. The school system argued on appeal to the 11th Circuit that Jarron had to be educated in a public school and that the award was excessive in light of the violations. The court began its opinion by quoting the following language from a 1962 education case, Meredith v. Fair, 298 F.2d 696 (5th Cir. 1962):
A man should be able to find an education by taking the broad highway. He should not have to take by-roads through the woods and follow winding trails through sharp thickets, in constant tension because of the pitfalls and traps, and, after years of effort, perhaps attain the threshold of his goal when he is past caring about it.
The 11th Circuit upheld the district court’s award and held that while the IDEA is structured to favor public schools, the failures of the public school to provide an appropriate education can militate in favor of private school.
Book-Banning
ACLU v. Miami-Dade County School Board, 2009 WL 263122
(11th Cir. Feb. 5, 2009)
The “A Visit to…” nonfiction series of short picture books targets readers from four to eight years old and provides an age-appropriate glimpse into what life is like for a child in that country. The book explores basic information about the country’s geography, people, customs, language and daily life. The series explores 23 countries and has books such as “A Visit to England,” “A Visit to Egypt,” “A Visit to Germany” and “A Visit to China.”
Juan Amador was a former Cuban political prisoner living in exile in Miami. When he read “¡Vamos a Cuba!” (“A Visit to Cuba”) in his young daughter’s school library, he was outraged by its inaccurate portrayal of life in the communist state. He formally requested that the book be removed from the library. After following the prescribed review process, the school board decided that, given the factual inaccuracies and omissions in the book about life in Cuba, the book should be removed from not just the elementary school library at issue, but all district libraries. The board went further and found that all of the books in the series contained factual inaccuracies and simultaneously decided to remove the entire “A Visit to…” series from all district libraries.
The ACLU and the Miami-Dade County Student Government Association sued the board, claiming that their 1st and 14th Amendment rights to freedom of speech and access to information were violated by the “book banning.” They also claimed that their rights to due process were violated because the school board’s action extended beyond the offending book on Cuba and the single school library. The district court agreed and granted the ACLU a preliminary injunction blocking removal of the book. The board appealed.
As an initial matter, the 11th Circuit reaffirmed the notion that core educational policy should remain the province of local school districts and not the courts. With that said, the court used the standard enunciated in Board of Education v. Pico, 457 U.S. 853 (1982), which stated that school boards cannot remove books just because the board disagrees with the books’ ideas and wants to control what shall be acceptable politics, nationalism, religion or other matters of opinion. Rather, the court determined that a board could remove a book on the grounds of educational unsuitability – a component of which is factual inaccuracy. Based on this standard of review, the relevant question for determination of this case was motive: was the school board’s decision motivated by opposition to the viewpoint of the book or was it motivated by its finding that the book was inaccurate? The 11th Circuit determined it to be the latter as evidenced by the statements made by the school board members at the meeting where the decision was made. The fact that the board is primarily Cuban-American and has an interest in matters involving Cuba did not render their motives suspect. Here, the court agreed that the school board did not take the action based on its dislike of the ideas in the book; rather the board acted based on the lack of factual accuracy in the book. This finding is further supposed by the fact that the book does, in fact, contain factual inaccuracies. The court was careful to note that the inaccuracies were not merely “perceived,” but undisputed by all the parties. For example, the book stated as follows: “People in Cuba eat, work, and go to school like you do.” The court recounted in detail why this statement, as well as several others throughout the book, was factually inaccurate, no matter the target age of the book’s audience. Under this standard, the board did not violate the 1st Amendment.
Moreover, the court took exception with the characterization that the book was “banned.” The court noted that the book, which was purchased with board funds, was removed from the schools’ libraries. It remained available for anyone desiring to own, possess or read at other public, non-school libraries and was also available for retail purchase.
As to the ACLU’s assertion that the school board violated the 14th Amendment because its action extended beyond the initial book and library, the court found this argument to be without merit. The court noted that due process requires notice and an opportunity to be heard. A review of the record established that these elements were provided.
Alabama Supreme Court Decision
Immunity
Ex parte Auburn, 6 So.3d 478 (Ala. 2008)
The three plaintiffs in this case were 12-month faculty members at Auburn who were specially classified as federal appointees. As a result of that classification, they received various federal benefits, including federal retirement.
Following a university reorganization, the employees were reclassified, but retained their federal benefits. The university also gave regular faculty members the option to work either nine-month contracts or 12-month contracts. Those who chose to work nine-month contracts would be allowed to supplement their reduced salaries during the unpaid summer months by working for outside programs. Based on university policy, those who opted for 12-month contracts would be barred from working for outside programs. However, based on federal law, those like the plaintiffs who were receiving federal benefits were prohibited from working nine-month contracts.
As a result of their inability to convert to nine-month status which made them eligible to seek external salary supplements while still retaining their federal benefits, the plaintiffs asked the director of their program to increase their salaries to compensate for the limitation on outside work. The director denied their request. He told them that federal regulations barred 12-month employees from supplementing their salary while still receiving federal benefits. However, in an effort to compromise with the employees, the director told them they could either retire from their federal positions or he could abolish those positions so they could negotiate regular nine-month contracts. As a result, they would lose their federal benefits, but the employees would be eligible to seek outside salary supplements like other nine-month employees.
The director misinformed the employees because it was university policy, not federal regulation that barred 12-month employees from supplementing their salary. Additionally, the director did not have the authority to abolish the positions. The employees sued on the grounds of age discrimination, equal protection and intentional misrepresentation and alleged that the director acted outside the scope of his authority by stating that he could abolish their positions. The university defendants moved for summary judgment based in part on the theories of state-agent and sovereign immunity. The trial court declined to rule on the immunity issues and stated that those issues would be resolved during the bench trial. The trial court also determined that there was a question of fact as to whether the director acted outside his authority.
The university defendants petitioned the Alabama Supreme Court to direct the trial court to rule on the immunity issue. As to immunity, the Supreme Court noted that the purpose of the immunity defense is to save public entities from going to trial when not warranted. To save such a ruling until trial lays waste to the very protection immunity is designed to offer. The trial court’s rationale that the parties opted for a bench trial rather than the more costly jury trial was unpersuasive. As to the director’s alleged misrepresentation, the court determined that the director’s miscommunication regarding whether it was federal or university regulation which would prohibit the employees from converting to nine-month employees was an innocent misstatement. Further, the director’s assertion that he had the authority to abolish their positions was equally as innocent given that the university could do so. The law did not intend for public employees to lose the protections of immunity for acts or statements that were neither willful, malicious nor fraudulent. Accordingly, the Supreme Court granted the director state-agent immunity for the claims brought against him and remanded the case back to the trial for consideration of the university’s sovereign immunity argument.
Court of Civil Appeals Decisions
Fair Dismissal Act
Bishop State Community College v. Williams, 4 So.3d 1152
(Ala.Civ.App. 2008)
This case was the result of multiple actions by multiple entities and multiple appeals involving both the college and the state Board of Nursing. While this was a post-secondary school as opposed to a public school, the court’s language is useful and can be applied universally to Teacher Tenure Act and Fair Dismissal Act cases.
Dr. Michael Williams was hired by the college as a nursing instructor. Shortly after being hired and for several years following, numerous complaints were filed against Williams alleging sexual harassment of various female students. While the college investigated the complaints, they could not be substantiated and no action was taken against him.
Several years into his tenure, a complaint was filed against Williams with the Board of Nursing regarding his alleged inappropriate relationship with a student. The Board of Nursing convened its own investigation into Williams’ conduct. The following year, the college sought to terminate Williams pursuant to the Fair Dismissal Act. Among of the grounds for his termination were the multiple complaints against him, the Board of Nursing’s investigation as well as his academic failings as a teacher. The termination (conducted prior to the new arbitration law) was reduced to a six-week unpaid suspension by the employee review panel and the panel’s decision survived on appeal. Thereafter, the Board of Nursing concluded its investigation and eventually decided to suspend his nursing license and place him on probation. On appeal, the Court of Civil Appeals upheld the Board of Nursing’s decision.
Following that appeal, Williams was told by the college’s Nursing Director that he could not work the approaching summer term because his license had been suspended. Unaware of this, the College President noted Williams’ absence from his summer classes and assumed that he had abandoned his position. As a result, Williams was not offered a teaching contract for the fall semester. Also that summer, the college learned that Williams, in fact, could not teach for the next two years while on probation, pursuant to Board of Nursing regulations. When Williams reported to work for the fall semester, he was told that he could not teach while he was on probation. He filed a direct appeal to the administrative law judge claiming that the college was trying to terminate him without due process. The administrative law judge ordered the college to hold a hearing on Williams’ proposed termination. Thereafter, the college requested a ruling from the Board of Nursing regarding the impact of Williams’ probation on his license. The board issued a formal ruling stating that Williams could not teach while on probation. The college proceeded with the termination, and a hearing officer was appointed to conduct an evidentiary hearing.
In a harsh ruling, the hearing officer found that Williams was terminated as a result of the college president’s personal bias against him, reinstated him to his position, rebuked the Board of Nursing for its role in Williams’ termination from the college, declared the nursing board’s suspension and probation order “an absolute nullity” and ordered the college to remove all sexual harassment complaints from Williams’ personnel file. Finally, the hearing officer ordered the college to pay punitive damages to Williams as well as pay his attorneys’ fees and costs.
The college appealed his order to the Court of Civil Appeals raising multiple issues including whether the hearing officer had the authority to declare the Board of Nursing’s discipline a nullity and whether the evidence supported the hearing officer’s finding of an improper personal motive. In a tersely worded opinion, the Court of Civil Appeals ruled that the hearing officer failed to decide the relevant issues and instead, focused on matters that were not within of his discretion. For instance, the hearing officer was without authority to rule on the validity of the Board of Nursing’s discipline. Not only was that not within his authority as a hearing officer, but more egregiously, the appellate courts had already reviewed and upheld that order.
The court noted that the hearing officer failed to determine whether the encumbrance on Williams’ license affected his qualification to teach, but declined to make that determination on its own. Rather, it reluctantly remanded the question back to the hearing officer for proper consideration. As to the college president’s alleged bias, Williams argued that the president was angry with Williams because of her prior attempt to terminate him failed and resulted in large legal fees. However, the court found her bias to be not personal, but professionally justified given Williams’ history with the college.
Both parties agreed that the hearing officer had no authority to assess punitive damages or any other fees or costs against the college. According to the college’s attorneys, this matter remains pending before the original hearing officer and they are awaiting a new hearing date.
Teacher Tenure Act
Montgomery County Board of Education v. Webb, 2008 WL 5265042 (Ala.Civ.App. 2008)
This case was the result of the Montgomery County Board of Education’s attempt to terminate teacher Cedrick Webb. Following an incident shortly before the end of the 2005-2006 school year, Webb was placed on administrative leave pending an investigation of an incident. The following school year, the superintendent notified Webb that she would be recommending his termination. The grounds were based on the incident as well as previous incidents for which Webb had been disciplined in the last several years.
In a procedural move, the hearing officer barred the board from using the May 2006 incident as justification for termination because no action was taken against Webb before the end of the 2005-2006 school year. Additionally, over the board’s objection, the hearing officer permitted Webb to relitigate the prior disciplinary actions in the termination hearing. As a result, the hearing officer reversed Webb’s termination, reinstated him to his position and imposed a 10-day suspension without pay for an incident that he was reprimanded for in 2002 as well as the May 2006 incident which the hearing officer determined could still be the basis for some discipline short of termination. As to most of the prior incidents, the hearing officer ordered them expunged from Webb’s personnel file because Webb had either offered evidence that he was not guilty of the offense or because he was being disciplined more harshly than other teachers.
The board appealed, arguing the hearing officer erred when he: (1) ruled that the May 2006 incident could not be considered because it was brought after the end of the school year; (2) allowed Webb to relitigate issues that had already been disposed of by the board and that were not before him; and (3) ordered the board to expunge Webb’s personnel file of the prior disciplinary actions because it was outside his authority.
As to the timing of the cancellation notice, the court noted that the purpose of Ala. Code §16-24-12, the statute requiring boards to notify teachers of any change in their status prior to the end of the school year, is to allow teachers the opportunity to seek employment during the “crucial summer months” when boards are hiring. Here, because Webb remained on paid leave during those crucial summer months, he was not harmed by the timing of the termination notice. The court clarified a previous holding by noting that the board is only obligated to provide a teacher with notice of cancellation prior to the end of the school year when the board’s vote to cancel the contract predates the end of the school year. Here, it did not.
As to the prior discipline, the court found that the hearing officer improperly allowed them to be relitigated. The statute only permits the hearing officer to consider the employee’s record as support for or mitigation against possible discipline. The court further held that the employee cannot assert any defense to a prior incident that he did not offer at the time of the incident when the original discipline was imposed. To permit otherwise would result in a lengthy and protracted hearing full of inadmissible evidence. Additionally, the court noted that the hearing officer could not impose a 10-day unpaid suspension when the board had already disciplined him with a reprimand in 2002.
Lastly, the court held that the hearing officer had no authority to order the board to expunge Webb’s personnel file of previous discipline. The court remanded the matter back to the original hearing officer to reconsider the appropriate discipline in light of its findings. On March 6, 2009, the Court of Civil Appeals declined to reconsider its ruling in Ex parte Webb, 2009 WL 565421 (Ala.Civ.App.). Webb has appealed to the Alabama Supreme Court and AASB’s Legal Assistance Fund has submitted an amicus brief in support of the board.
Malicious Prosecution for Termination
Haynes v. Coleman, 2009 WL 962523 (Ala.Civ.App.)
Plaintiff-teacher Arthur Haynes was employed by the Board of School Commissioners of Mobile County. After the board fired Haynes, he appealed to a hearing officer pursuant to the Teacher Tenure Act. After the hearing, the hearing officer ruled in his favor and Haynes was reinstated to his position.
Following his reinstatement, Haynes sued a fellow employee for allegedly making false statements about him to co-workers, supervisors and investigators. Haynes claimed that the co-worker’s statements led to the termination proceedings against him. He brought multiple causes of action against the co-worker, including malicious prosecution and abuse of process based on the allegation that the co-worker knew or should have known that his statements would lead to the termination proceedings. All other claims were dismissed as time-barred. The employee also moved to dismiss the case based on the ground that the malicious prosecution and abuse of process actions could not be based on an administrative proceeding. The trial court dismissed the employee’s complaint and he appealed.
While the Court of Civil Appeals noted that there were no Alabama cases holding that malicious prosecution actions could be based on administrative hearings, it also noted that other jurisdictions have found them proper. However, the court declined to make that determination here. Rather, the court held that the malicious prosecution action failed to state a claim upon which relief could be granted because the co-worker did not initiate the proceeding; the superintendent did. As to the abuse of process claim, the court similarly noted that there were no Alabama cases holding that such a claim could be based on an administrative proceeding. The court declined to determine the propriety of the claim here, because again, Haynes failed to properly plead the elements of the claim. Specifically, the court noted that abuse of process is based on conduct after the process has begun. The court noted that Haynes’ complaint contained no allegations regarding the co-worker’s conduct after the termination proceedings were initiated. Lastly, the court ruled that Haynes failed to allege that the co-worker acted with an ulterior purpose, another element of the abuse of process claim. Court records do not indicate any further appeal.
Circuit Court Decisions
Open Meetings Act
Citizens for Better Schools v. Greene (Jefferson County Cir. Ct. CV-07-932 Sept. 17, 2007)
The Fairfield Board of Education decided to hold a special meeting to vote on naming the interim superintendent to the superintendent post. While the originally posted notice failed to comply with the requirements of the Open Meetings Act because it did not include a preliminary agenda or reason for the meeting, the interim superintendent eventually realized the error and amended the notice. Following the superintendent’s appointment, several citizens filed this action against the superintendent and the board members who attended the meeting. The citizens alleged that the meeting was held in violation of the Open Meetings Act and therefore any action taken during that meeting was illegal. The court found that the failure to post an item as significant as the appointment of the superintendent was sufficient grounds to void the appointment. He found the interim superintendent who prepared the original notice to be at fault for the insufficient notice and the present board members for their attendance. Lastly, the court noted with regret that the statute required a fine against the defendants for the violation of the act. However, the court was resistant to do so because it did not believe the omission was made intentionally or in bad faith. The court took great pains to express his belief that the public service provided by the defendants is both demanding and thankless. As a result, in addition to voiding the superintendent’s appointment, a nominal $25.00 fine against each of the defendants was imposed.
Kesner v. Huntsville (Madison County Cir. Ct. CV-08-871 July 9, 2008)
The plaintiffs were two former employees of the Huntsville Board of Education. A special meeting was called to vote on hiring replacements for the former employees. The former employees sought an injunction against the board claiming that the board violated the Open Meetings Act by failing to post a notice of a board meeting on a bulletin board. The court noted that the Open Meetings Act will not void board action if the particular violation was “the result of mistake, inadvertence, or excusable neglect.” The court found that the violation here was unintentional and simply the result of an inadvertent error by a clerk. However, the court went further by finding that bulletin board posting is likely the least effective method of providing notice. The court also found that any error was harmless as evidenced by the fact that the meeting in question was attended by both media and the public.
Salary Schedules
Coaker v. Dees (Washington County Cir. Ct. CV-07-94 September 12, 2008)
The plaintiffs in this case were support personnel employed by the Washington County Board of Education. The plaintiffs filed suit against the board claiming that their salary schedules failed to comply with state law. The board’s salary schedule for certified personnel contained “steps” or “cells” for teachers as required by state statute. Those steps provided for escalating salary based on the amount of experience the employee had. The board also maintained a salary schedule for support personnel, but it did not contain steps for longevity. The board claimed that state law only required that they maintain a written schedule, but did not require that they provide steps as required for teachers. The court found that the board was prohibited from maintaining different definitions for “salary schedule” and ordered it to treat all employees similarly.
Attorney General Opinions
Nepotism
A.G. No. 2008-084 (May 19, 2008)
This opinion was requested by Rep. James Buskey regarding interpretation of the state’s nepotism statute codified at Ala. Code §41-1-5 as applied to public school systems. Rep. Buskey asked whether a superintendent could recommend his relative (relation within four degrees of consanguinity) for employment in the school system if the superintendent allowed someone else to conduct the interview. The opinion referred to a previous opinion (A.G. No. 96-290) which found that the “appointing authority” mentioned by the statute is the board of education as opposed to an individual board member. As a result, the applicant could be hired as long as his relative did not participate in the decision-making process. However, this 2008 opinion extended the term “appointing authority” to include the “recommending official” because in the context of public schools, the appointing process requires two steps: recommendation by the superintendent and approval of the board. Therefore, the limitations imposed by the nepotism statute apply to the superintendent as well. Relying on a previous opinion (A.G. No. 85-2007), the opinion determined that the superintendent could do two things to avoid running afoul of the nepotism statute when recommending a relative: (1) recommend at least one other equally qualified person for the position, and (2) refrain from participating in the board’s decision-making process. This would give the board the option to select either of the qualified applicants. NOTE: The opinion does not address the ethics law issues presented by this situation. In fact, the process outlined by the state Ethics Commission to comply with the state ethics law conflicts with the process outlined in this opinion.
Cooperative Agreements
A.G. No. 2008-130 (September 4, 2008)
The Sylacauga Board of Education often leased and used the football stadium owned by the City of Sylacauga. The board sought an opinion as to whether it could contribute money to the city for the purpose of making capital improvements to the football stadium. The opinion noted that Ala. Code §16-11-9.1 gave boards of education the authority to enter into cooperative agreements as long as those agreements were consistent with the purposes for which the school system existed. Therefore, as long as the board determined the donation and subsequent capital improvements were consistent with the purposes of the school system, the contribution was proper.
— Jayne Harrell Williams
— info@alabamaschoolboards.org
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