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September 2012 Court Report


Read the September 2012 issue of Court Report, which includes such topics as the Students First Act, RIF, supplemental contracts and state intervention. This newsletter is an ACSBA member benefit.


September 2012 Issue of Court Report

  • Students First Act

Chilton County Board of Education v. Cahalane, ---So.3d---, 2012 WL 3631143 (Ala.Civ.App. Aug. 24, 2012)

An employee was discovered on campus with marijuana. While the evidence appeared undisputed that the marijuana belonged to the employee’s daughter, in light of the board’s zero tolerance drug policy, the superintendent recommended and the board approved a 90-day suspension without pay. The employee appealed and the hearing officer reversed the suspension, finding the board’s decision arbitrary and capricious in light of the fact that the employee did not intend to violate the policy. The board filed an appeal with the Court of Civil Appeals.

The issue on appeal was whether the hearing officer applied the proper standard to review the board’s decision under the Students First Act. Both sides agreed that the hearing officer was required to apply the “arbitrary and capricious” standard to the review of the decision. The court noted that the “arbitrary and capricious” standard is meant to be extremely deferential, stating “where reasonable people could differ as to the wisdom of [the board’s] decision...the decision is not arbitrary.” The Court recognized that the circumstances were difficult, but held that the hearing officer improperly substituted his judgment for that of the board. The Court reversed his decision and upheld the suspension.

  • Reduction in Force

Board of School Commissioners of Mobile County v. Weaver, ---So.3d---, 2012 WL 2477937 (Ala. Jun. 29, 2012)

This case originated after the board declared a reduction in force which resulted in multiple assistant principals being transferred to teaching positions. After transferring into those positions, the employees alleged that the board failed to comply with the recall portion of the RIF policy. They filed a complaint seeking backpay and an order that they be reinstated as assistant principals. The trial court ordered the employees be reinstated and awarded each backpay. The board and Superintendent appealed.

The Alabama Supreme Court first held that the trial court erred in its order against the board. The board, as a local agency of the State, was entitled to absolute immunity and was therefore not subject to the trial court’s jurisdiction. Any judgment against it was void as a matter of law.

The Superintendent, sued in his official capacity, was likewise entitled to absolute immunity, but the Court noted certain circumstances when Section 14 of the Constitution of Alabama did not bar lawsuits. The employees argued that absolute immunity was not applicable because this was an action brought to compel a state official to perform his legal duty; to compel a ministerial duty; seeking construction of a statute or containing an allegation of bad faith. The employees here argued that the superintendent’s refusal to recall them under the RIF policy implicated each of these circumstances. Nevertheless, the Court noted that the superintendent had no authority to recall these employees; only the board could. Therefore, the superintendent was entitled to absolute immunity and the trial court’s judgment against him was void as well. Because no appeal can lie from a void judgment, the appeal was dismissed.

  • Supplemental Contracts 

Jones v. Teel, ---So.3d---, 2012 WL 3055528 (Ala. Jul. 27, 2012)

This suit was filed by multiple bus drivers against the board, its members and its superintendent. The suit alleged that the defendants failed to provide incremental steps for their regular salaries and failed to provide legislative pay raises to their pay they received for driving special routes. The trial court entered judgment in favor of the defendants and the drivers appealed.

The Court of Civil Appeals agreed with the trial court that the board was absolutely immune from suit, but that the board members and superintendent were not. Because that holding was not adverse to the employees, they could not seek reversal on that basis. The Court also agreed with the trial court that any claims which accrued prior to two years was barred by the statute of limitations set by Ala. Code §6-2-38. The Court also agreed with the trial court that special route contracts were not subject to the legislative pay raise citing the portion of the statute which read “[t]he pay raise provisions of this section shall not apply to any salary supplements granted by local boards of education…” Lastly, the Court agreed with the trial court that the claim regarding the board’s failure to include incremental steps for its regular routes was moot since the board amended its schedule to reflect steps.

  • State Intervention 

Witherspoon v. Drew, Jefferson County Circuit Court (Birmingham), CV-12-000936 (Aug. 13, 2012)

State Board of Education v. Birmingham City Board of Education, Jefferson County Circuit Court (Birmingham), CV-12-902271 (Aug. 13, 2012)

The State Department of Education took over the board for various financial and governance reasons. As part of the takeover, the state superintendent ordered the board to take no personnel actions against senior level staff since the board had attempted to fire the superintendent previously. Weeks later, the board voted to terminate the superintendent. Lawsuits were filed on behalf of the superintendent and the state seeking to overturn the termination and an injunction against the board from taking further action to interfere with the takeover. After a hearing, the trial court found that the board violated the terms of the state’s takeover and entered a permanent injunction preventing the board from interfering with the state’s governance of the board.

  • Open Meetings Act

Berryman v. Lawrence County Board of Education, Lawrence County Circuit Court, CV-12-9000045 (JUL. 27, 2012)

This case was filed by the head football coach against the board for violating the Open Meetings Act. The coach claimed that the board violated the Act when it went into executive session to hear from six members of the community who discussed the coach’s good name and character and job performance. At a later date, the superintendent told the coach that his coaching supplement would not be renewed and that he was reassigning him to another teaching position within the school.

The coach sued the board alleging that the executive session was illegal because the board allowed members of the public to meet with the board in executive session, while excluding others. The coach asked that the trial court enjoin the superintendent’s actions which allegedly arose out of the illegal meeting.

The trial court held that the board did not violate the Open Meetings Act when it allowed members of the public to address them in executive session. Moreover, the trial court noted that the superintendent took the subsequent actions; not the board.

  • Immigration

Hispanic Interest Coalition v. Alabama, --F.3d--, 2012 WL 3553613 (11th Cir. Aug. 20, 2012) U.S. V. State of Alabama, ---F.3d---, 2012 WL 3553503 (11th Cir. Aug. 20, 2012)

This is the latest opinion in the continuing litigation challenging the Beason-Hammon Alabama Taxpayer and Citizen Protection Act. Section 28 of the Act required public schools to record the immigration status of its students by collecting the birth certificate or a declaration from the parent of whether the child was born inside or outside of the United States. The district court issued a preliminary injunction blocking enforcement of Section 28 (and other sections) and the injunction was appealed to the Eleventh Circuit. In reviewing whether the injunction was appropriate, the Court considered the plaintiff’s likelihood of success on the merits. The plaintiffs claimed that Section 28 violated the Equal Protection Clause of the U.S. Constitution. The Equal Protection Clause requires that all similarly situated persons should be treated alike. The State argued that the section did not implicate the Equal Protection Clause because its only function was to collect data. The Court found this argument unpersuasive, stating that Section 28 significantly interfered with the right to receive public education and that there was no substantial state interest which justified that interference. While Section 28 did not take away a child’s right to an education, it put undocumented children in “an impossible dilemma: either admit your unlawful status outright or concede it through silence.” In light of the U.S. Supreme Court’s recent decision in Arizona v. United States, 567 U.S. --, 132 S.Ct. 2492 (2012), the Eleventh Circuit held that the plaintiffs were likely to succeed on the merits as to the argument that Section 28 violated the Equal Protection Clause.

  • Student Rights

Attorney General's Opinion

P. 2012-058 (MAY 1, 2012)

This opinion was requested by a board regarding whether schools were required to allow subpoenas to be served upon students during schools. The opinion was requested after an attorney in a juvenile delinquency proceeding attempted to serve witness subpoenas upon children at school and during school hours rather than at home. The opinion noted that there was no limitation in the Rules of Juvenile Procedure or Criminal Procedure regarding the manner of service. Therefore, service would be appropriate. Nevertheless, because boards of education have the right to regulate the schools and school day, service could be limited as to time, place and manner to minimize disruption to the academic program.

Jayne Harrell Williams

Jayne is a shareholder with the law firm of Hill, Hill, Carter, Franco, Cole & Black

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