July 2010

Alabama Supreme Court

•  Immunity/Corporal Punishment

Ex parte Monroe County Bd. of Educ., 2010 WL 1946266 (Ala. May 14, 2010)

            This case arose from a fifth grade teacher’s attempt to paddle a disruptive student.  The teacher initially attempted to “hand paddle” the student outside the classroom in the hallway, but when he resisted, she took him into an empty classroom to paddle him on his behind.  The student continued to resist and eventually the teacher gave up. The student, however, claimed the teacher continuously struck him causing injuries to his leg and arm.  The student’s mother sued the board and the teacher for negligence and assault. The board and teacher claimed they were entitled to immunity.    The trial court denied summary judgment and the board and teacher sought review with the Alabama Supreme Court.
            The Court first considered whether the board was entitled to immunity. Relying upon its recent ruling in Ex parte Hale County Board of Education, 14 So.3d 844 (Ala. 2009), the court reaffirmed that county boards of education are entitled to absolute immunity. Accordingly, it dismissed all claims against the board.
            The court next considered whether the teacher was also entitled to immunity. The court first noted the law of state-agent immunity which, in the context of this case, generally provides that state agents shall be immune from suit when they are exercising their judgment in the performance of their duties unless he acts beyond his authority. Ex parte Cranman, 792 So.2d 392, 405 (Ala. 2000). Here, because the teacher failed to have a witness present when she disciplined the student as required by board policy, the court held that she acted beyond her authority and therefore was not entitled to state-agent immunity. Accordingly, the court determined that the student’s claims against the teacher could proceed to a jury.

United States Supreme Court

• Privacy Rights/Cell Phones

City of Ontario v. Quon, 560 U.S. ---, 2010 WL 2400087 (Jun. 17, 2010)

      In this case, the City of Ontario purchased pagers for the SWAT Team to use for work. The pagers were able to send and receive text messages.  The city’s plan provided each device with a limited number of text messages. Messages transmitted over that limit were charged an overage fee. The plaintiff-employee was a member of the SWAT Team and received one of the pagers which was to be used during the course of his police work. He signed an acceptable use policy which stated that he should have no expectation of privacy in any messages transmitted with the pager and that the messages were subject to audit to ensure compliance.  Shortly after being issued the pager, the employee’s supervisor noticed that he was exceeding the number of messages allotted him. He approached the employee and told him that rather than subjecting him to an audit, the employee could simply pay back the overage charges. The employee did so and this pattern continued for several more months. Eventually, the supervisor grew tired of collecting overage charges from the employee and others who were exceeding the limits and decided to audit the messages to determine whether the city’s plan needed to be changed to allow employees the access they needed to perform their work or if the text messaging was being used for personal purposes. A transcript of the text messages revealed that the plaintiff in particular was sending an overwhelming number of personal messages during the work day, including sexually explicit messages to his mistress.

      After the city attempted to discipline the employee, he filed suit alleging a violation of his Fourth Amendment right against search and seizure. Those who he texted also joined the suit alleging that the audit violated their constitutional rights as well.  The trial court rejected the city’s argument that the employee had no reasonable expectation of privacy in his messages.  Therefore, the jury was asked to determine whether the purpose of the city’s audit was reasonable: if the audit was done to see if the employee was misusing the property, the audit was unreasonable, but if it was done to see if the messaging limits were deficient, the audit was reasonable. The jury found that the city had a right to conduct the audit to determine whether its messaging limits were sufficient and found in favor of the city. The Ninth Circuit reversed the trial court and found that the audit was not reasonable.  The city appealed.

      In light of the potentially far-reaching impact of its ruling and the changing and growing technology, the nation’s highest court determined that it would decide the case on very narrow grounds. For purposes of its decision, the court assumed without deciding: (1) that the employee had a reasonable expectation of privacy in his text messages; (2) that the audit constituted a Fourth Amendment search and (3) that the principles which applied to an employer’s search of an employee’s physical workspace applied to an employer’s search of an employee’s electronic workspace.

      The court noted that the audit did not necessarily violate the Fourth Amendment even if the employee had a reasonable expectation of privacy in the messages.  Rather, the court determined that if the search was conducted for a “noninvestigatory, work-related purpose” or to investigate work-related misconduct, a warrantless search was reasonable if “the measures adopted [were] reasonably related to the objectives of the search and not excessively intrusive in light of” the circumstances. Here, the city’s claim that it conducted the search to determine if its text-messaging package was sufficient for its employees to conduct their work was a noninvestigatory, work-related purpose. The court also held that the audit was a reasonable way to determine the nature of the messages and not excessively intrusive, noting that the city limited its transcript request to two months even though the employee had exceeded his allotment for several months and that the auditor redacted messages sent while the employee was off duty.
      Accordingly, the court upheld the jury’s verdict in favor of the city.

Eleventh Circuit Court of Appeals

• Physical Violence/Immunity

Mahone v. Ben Hill County School System, 2010 WL 1780246 (11th Cir. May 5, 2010)
            This case arose from an incident referred to as the “Trash Can Incident.”  A sixth-grade student with various disabilities accused his physical education teacher of shoving his head into a trash can and pulling him out by his legs. The superintendent asked the principal to investigate the incident. The principal interviewed the student, the accused teacher and other students and teachers. The principal concluded that the incident amounted to nothing more than harmless horseplay. The teacher was counseled about his conduct and the superintendent met with the student’s parents to discuss the results of the investigation. The parents subsequently sued the board, superintendent, principal and teacher for violation of the student’s constitutional rights. The trial court granted summary judgments to all defendants and the parents appealed.
            The parents first argued that whether the individual defendants were entitled to qualified immunity was a question for the jury, but the court reaffirmed that qualified immunity is a matter of law to be decided by the trial court. The parents next argued that the teacher deprived the student of his right to be free from physical and mental abuse. The court noted that the parents would have to demonstrate that the teacher’s conduct was arbitrary or conscience-shocking. Here, the court agreed that the teacher’s conduct was not conscience-shocking in that the action did not cause injury and was not done with malice or intent to harm. Lastly, the parents argued that the conduct amounted to corporal punishment and excessive force. The court disagreed and found that the incident was not one of corporal punishment, and therefore both the Eighth and 14th Amendments were inapplicable. Given these findings that the teacher did not violate the student’s constitutional rights, the court held that the other defendants could not be found guilty of violating his rights either.

• Title IX/Sexual Harassment

Doe v. School Board of Broward County, 2010 WL 1655918 (11th Cir. Apr. 27, 2010)
            In this case, a 15-year-old female student claimed she was sexually harassed and assaulted by her math teacher. The principal placed the teacher on leave and began an investigation which ultimately led to the teacher’s termination.  The student later learned that two other students had previously complained about the same teacher before her incident with him. The first incident involved a female student who claimed the teacher had sexually harassed and inappropriately touched her. The student reported the incident to the principal and the board’s investigative unit conducted an investigation after the teacher was placed on leave. The investigator eventually determined that the claims could not be substantiated and the teacher returned to work. The second incident was similar, but the investigator was not informed of the prior complaint. The investigation of the second incident was also found to be inconclusive and the teacher returned to work. Based on this history, the student and her parents sued the board and principal for violations of Title IX and the student’s constitutional rights claiming that the board had been deliberately indifferent to prior claims of sexual harassment.  The defendants were granted summary judgment and the student appealed.
            The court determined that the failure of the principal to notify the investigator of the prior incident rendered that investigation inadequate and a violation of Title IX. The court noted that while every imperfect investigation would not create Title IX liability, there had to be some minimally reasonable investigation. “Minimally reasonable” consists of the investigator acquiring the relevant facts, interviewing the student, teacher, parents and all other witnesses with relevant information and taking into account prior complaints against the same teacher.  Further, the court held that even if a complaint is found to be inconclusive, the board must take appropriate measures to protect the student, e.g. monitoring the teacher, warning the teacher about inappropriate conduct and warning the teacher to avoid the appearance of impropriety. While the court ultimately decided to uphold summary judgment for the principal, it allowed the case to proceed against the board.

— 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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