October 2013 Court Report: immunity-student injury; student searches; Title IX-sexual harassment
Read the October 2013 issue of Court Report, which includes such topics as immunity-student injury; student searches; Title IX-sexual harassment. This newsletter is an ACSBA member benefit.
October 2013 Issue of Court Report
Alabama Supreme Court
- Immunity - Student Injury
Ex parte George Mason, 2013 WL 5394325 (Ala. Sept. 27, 2013)
In this case, a fifth-grade student was hit by a car after he got off the schoolbus and attempted to cross a highway to get to his home. The student’s guardian sued the bus driver for failure to supervise the student and for failing to drop the student off at the appropriate location. The bus driver argued that he was entitled to state agent immunity because he was exercising his judgment in performing his duties on the day in question. He also argued that he acted consistently with state and board regulations. The student’s guardian argued that the bus driver was not performing a duty that would entitle him to immunity and that he was negligent when he allowed the student to get off of the bus at a place that would require the student to cross a highway to get home.
After the trial court denied the bus driver’s motion for summary judgment, the bus driver sought review in the Alabama Supreme Court. The Court first considered whether the bus driver was eligible for state agent immunity. To be eligiblefor immunity, the bus driver would have to be performing official duties and exercising his discretion in supervising students. The Court cited Ex parte Trottman, 965 So.2d 780 (Ala. 2007), which held that the “educating students” provision described in Ex parte Cranman, 792 So.2d 392 (Ala.2000) “includes not only classroom teaching, but also supervising and educating students in all aspects of the educational process.” Moreover, the Court rejected the guardian’s argument that Horton v. Briley, 792 So.2d 432 (Ala.Civ.App.2001) precluded bus drivers from asserting state agent immunity. In Horton, the bus driver was denied state agent immunity after the bus she was driving was involved in an accident injuring the student. The Court here determined that while Horton involved the bus driver’s driving, this case involved the bus driver supervising the student while getting off of the bus.
The Court also considered whether the bus driver acted beyond the scope of his authority when he allowed the student to get off the bus across the highway from his home. While the guardian argued that this was contrary to state and board regulations, the Court determined that the bus driver stopped at the board approved location, had no way of knowing that the student lived on the other side of the highway and did not observe him cross the highway because the bus driver had continued on his assigned route. Based on this evidence, the Court determined that he had not acted beyond the scope of his authority.Therefore, the Court issued the writ of mandamus to the trial court and directed it to grant summary judgment in favor of the bus driver.
- Student Searches
Ex parte State of Alabama, 2013 WL 4873080 (Ala. Sept. 13, 2013)
While this appeal is from a criminal case rather than a school board case, it does address a topic which impacts local boards of education. In this case, a high school student, E.M., was suspected of violating the school’s cell phone policy. The administrator used a metal detector on E.M. When it sounded, he had E.M. empty his pockets of a wallet and other items. The administrator found several small bags of cocaine in the wallet. The administrator asked E.M. who he had been with earlier, and E.M. advised that he had been with his cousin, G.M., another student in the school. The administrator confirmed with a teacher that the two boys had been together earlier in the day and were very close. The administrator reported the matter to the principal. The principal then called G.M. to the office and asked him if he had any contraband. G.M. said he did not. The principal told G.M. to empty his pockets at which time the principal found a small bag of cocaine in G.M.’s wallet.
A complaint was filed against G.M. in juvenile court for possession of a controlled substance. G.M. moved to suppress the cocaine on the grounds that the principal’s search violated his Fourth and 14th Amendment rights. The juvenile court denied G.M.’s motion, and G.M. appealed to the Court of Criminal Appeals. The Court of Criminal Appeals reversed the juvenile court and the State sought review of the ruling in the Alabama Supreme Court.
The issue before the Court was whether G.M.’s association with his cousin on the day of the search, as well as the administrator’s suspicions that the cousins were affiliated with a gang, was sufficient to warrant the search. The Court noted the United States Supreme Court’s ruling in New Jersey v. T.L.O.,469 U.S. 325 (1985) which held that the search of a student must be reasonable. The question of reasonableness required a court to consider whether the search was justified at its inception and whether the scope of the search was reasonable under the circumstances. A search is justified at its inception if “there are reasonable grounds for suspecting that the search will turn upevidence that the student has violated or is violating either the law or the rules of the school.” The scope is reasonable when it is not overly intrusive given the age and sex of the student and the nature of the infraction.
The Court rejected the State’s arguments that G.M.’s association with E.M. and the possibility that they had a gang affiliation were sufficient to warrant the search. The Court stated: “Although we recognize that the standard of suspicion is lower for searches conducted in a public-school setting, we do not believe that it is so low as to allow searches based solely on a student’s association with a known wrongdoer or general speculation as to the student’s possible gang affiliation.” The Court held that the principal’s search of G.M. was not based on reasonable suspicion or justified at its inception and upheld the Court of Criminal Appeals’ reversal of the juvenile court’s judgment.
Interestingly,Chief Justice Roy Moore concurred specially to note that while the evidence was excludable in the criminal prosecution, the same result would not be reached in a school disciplinary proceeding. Therefore, evidence that could not be used against G.M. in the juvenile court could potentially be used against him in imposing school discipline.
- Title IX - Sexual Harassment
K.B. v. DalevilleCity Board of Education, 2013 WL 5422685 (11th Cir. Sept.30, 2013)
The parents of a female student filed this Title IX action against the board claiming that the school custodian had sexually harassed the child. The parents alleged that the custodian touched the student’s buttocks in the cafeteria. The student reported the incident to her teacher who in turn told the assistant principal who notified the principal. The principal talked with the student about what happened and then spoke with the custodian to ask for an explanation. The custodian responded that he may have accidentally bumped into the student. The principal told the custodian to stay out of the cafeteria during the student’s lunch time and to otherwise stay away from her in the halls. The principal then called the superintendent to report the incident. The superintendent told the principal to investigate further and keep him posted on the matter. The principal met with the student’s mother to advise her of the matter and encouraged her, without success, to fill out a complaint form as required by policy. Days later, the principal went to the student’s home and gave the complaint form to the student. Eventually, the principal learned that the custodian had gone to the cafeteria during the student’s lunch time. The principal confronted the custodian for ignoring his instructions. The student eventually filled out the complaint form and told the principal that she was going to report the incident to the police. On the day the custodian was arrested, the superintendent initiated termination proceedings and the board subsequently approved the termination.
The parents argued that the board was on notice of the custodian’s propensity to sexually harass females because other incidents had been reported in the past.The board argued that the past incidents of sexual harassment involved employees, with the exception of a more recent complaint that the custodian had leered at both female students and employees. The district court held that the incidents of touching employees and leering at employees and students did not put the board on notice that the custodian would sexually harass a student. Moreover, as to the incident with the plaintiff student, the district court concluded that the board’s response was not deliberately indifferent. In fact, the district court found that the board’s response to the incident was “swift and effective.” The district court granted summary judgment in favor of the board, and the parents appealed to the 11th Circuit.
The 11th Circuit noted that two of the past complaints against the custodian happened under two different principals, were separated by more than a decade, and involved teachers rather than students. In each instance, the respective principals and/or superintendents took sufficient corrective action to prevent future incidents. After his transfer to the plaintiff’s school, the principal acknowledges receiving complaints from teachers and students that the custodian leered at them before ultimately receiving the plaintiff’s complaint of touching. The Court determined that the complaints of leering were insufficient to put the principal on notice that the custodian might sexually assault a student. Moreover, the Court agreed with the district court that the response of the principal was not deliberately indifferent. The Court made the same finding as to the superintendent and the board. Accordingly, the Court upheld summary judgment in favor of the board.
Jayne is a shareholder with the law firm of Hill, Hill, Carter, Franco, Cole & Black