November 2014 Court Report: RIF-Policy as Contract, Students First Act and IDEA
Read the November 2014 issue of Court Report, which includes such topics as reduction in force-policy as contract, Students First Act and IDEA . This newsletter is an ACSBA member benefit.
Alabama Supreme Court
- RIF-Policy as Contract
Nelson v. Megginson, 2014 WL 4851504 (Ala. Sept. 30, 2014)
In this case, several probationary teachers and classified employees sued the board claiming that they were improperly terminated or nonrenewed following a May 2008 RIF and that the board failed to recall them in 2009 as required by the RIF policy. The recall claim was presented as a breach of contract claim. In 2012, they dismissed their initial action and refiled the complaint against the board members and superintendent in their official capacities. The defendants moved to dismiss the complaint on the grounds that the 2-year statute of limitations for non-contract injuries and/or wages had run. The employees argued that their claim sounded in contract which had a 6-year statute of limitations. The trial court rejected that argument on the basis that the RIF policy specifically disclaimed contractual right for probationary employees. The employees appealed the dismissal to the Supreme Court.
On appeal, the employees argued that they properly stated a breach of contract claim which had a 6-year statute of limitations. The employees argued that school board policy could create a contract. The defendants argue that some, but not all, policies may create a contractual right, but that the RIF policies here specifically disclaimed any such right. The Court disagreed stating that, while there was language disclaiming a contractual right, there was other language in the policy which essentially guaranteed a one-time right to recall. While questioning whether the employees could ultimately prevail on their claims, in light of the deference afforded to the employees on a motion to dismiss, the Court determined that the trial court erred in assigning a 2-year statute of limitations and reversed the trial court’s ruling.
Ex parte Jackson County Board of Education, 2014 WL 4798755 (Sept. 26, 2014)
In this case, the board entered into a contract with a company to renovate a school gymnasium. After the work began, the State Building Commission ordered the board to stop the work because the project had not been approved by the Commission. The superintendent ordered the work to stop immediately and the company invoiced the board for the work that had been performed. The board did not pay the invoice and the company sued alleging breach of contract and other claims. The board moved to dismiss the complaint on the grounds of immunity and the company responded arguing that immunity was not appropriate because it had a protected property interest in the contract. The company also amended the complaint to name the board members and superintendent in their official capacities. The trial court denied the motion to dismiss and the board filed a mandamus petition with the Supreme Court.
In its argument to the Court, the company recognized the holding in Ex parte Hale County, 14 So.3d 844 (Ala. 2009) that boards enjoyed constitutional immunity from suit, but argued that the decision was improper because immunity must yield to the Takings Clause of the U.S. Constitution. The company also argued that Hale Countyimproperly decided that county boards were arms of the state, arguing that they are actually arms of the county and therefore not entitled to constitutional immunity. The Court rejected the company’s argument stating that the “exceptions” to immunity adequately protect those who contract with boards of education.
The Court also rejected the company’s attempt to amend the complaint to add the proper parties, finding that the court had no jurisdiction over the original complaint, and therefore, the defect could not be cured through an amendment. Accordingly, the Supreme Court granted the board’s petition and ordered the trial court to dismiss the complaint.
Alabama Court of Civil Appeals
- Students First Act
Huntsville City Board of Education v. Jacobs, 2014 WL 4798957 (Ala.Civ.App. Sept. 26, 2014)
This was a Students First Act case which resulted from the termination of a tenured teacher. The sixth-grade teacher taught at a struggling school which was required to provide extensive professional development to its staff. As part of the professional development, a team would perform “walk-throughs” of the classes so they could evaluate the teachers. The team later met with the teachers to discuss their evaluations and would give the teacher “grow and glows” which documented their positive observations as well as ways to improve instruction. The teacher had significant difficulty and was offered support to improve her instructional skills, but she was resistant to the efforts. During the same school year, after various incidents, including an incident involving the teacher striking a child, the superintendent recommended her termination. Prior to the hearing, the teacher’s attorney requested 98 categories of documents. The superintendent produced over a thousand documents that he planned to use to support his recommendation, but not all that the teacher requested, including the walk through notes and grow and glows. The board approved the teacher’s termination and she appealed to a hearing officer. The hearing officer reversed the board’s decision, finding that the teacher only struck the student in defense of another student and that the teacher’s due process rights were violated because the superintendent failed to produce all of the requested documents and did not timely place other documents in her personnel file. The board appealed to the Alabama Court of Civil Appeals.
The board’s first argument was the hearing officer improperly substituted her judgment for the board regarding the incident where the student was struck. The Court noted that the Students First Act requires the hearing officer give deference to the board’s decision by using the “arbitrary and capricious” standard of review which is “extremely deferential”. Lambert v. Escambia County Board of Education, 2013 WL 5583739 (Ala.Civ.App. 2013) and Chilton County Board of Education v. Cahalane, 117 So.3d 363, 367-68 (Ala.Civ.App. 2012). The Court found that the board—which actually observed the witnesses—was in a better position to judge their credibility than the hearing officer. Even if she disagreed with the board’s decision, she was not permitted to substitute her judgment where reasonable people could disagree.
The Court also rejected the teacher’s argument that Ala. Code §13A-3-23(d) provided the teacher with immunity based on her claim that she only used physical force to defend another. The Court found that the statute only immunized a person from criminal prosecution or civil action, not an administrative proceeding like a termination action.
The board next argued that it did not violate the teacher’s due process rights by refusing to provide her discovery. The Court noted that the Act did not require the superintendent to produce any discovery and that due process only required that “the teacher be provided some advance notice of the evidence to be used against him or her.” Because the superintendent did not rely on the requested documents, due process did not require him to produce those documents.
Lastly, the Court addressed the superintendent’s failure to timely place certain documents in the teacher’s file. Again, the Court found that this was not a due process violation because the personnel file statute gave discretion to administrators to determine what would be placed in the file, and irrespective of whether a document was in the file, the superintendent provided the teacher a copy of everything he intended to use during the hearing.
In her opposition brief, the teacher also argued that the board was not a neutral fact-finder and that the board attorney improperly prosecuted her during the hearing. The Court refused to consider these arguments because the teacher did not file a conditional cross-appeal on these issues.
The Court reversed the hearing officer’s decision and reinstated the termination. The teacher has filed an application for rehearing with the Court.
- IDEA-Independent Education Evaluation
Jefferson County Board of Education v. Lolita S., 2014 WL 4457263 (11th Cir. Sept. 11, 2014)
In this case, a mother requested a due process hearing to determine whether the board had provided her special education son with a free and appropriate education (“FAPE”) pursuant to the Individuals with Disabilities Act. (“IDEA”). The mother also requested reimbursement for an independent education evaluation. (“IEE”). The hearing officer determined that the board provided FAPE, but also found that the mother was entitled to reimbursement for the IEE since the board waived its opposition by not filing its own due process request regarding the appropriateness of its evaluation. The trial court determined that the board failed to provide the child with FAPE and agreed that the mother was entitled to reimbursement for the IEE. The board appealed to the Eleventh Circuit.
Schools are obligated to develop and revise IEPs that are “reasonably calculated to enable the child to receive educational benefits.” The Court determined that the student’s IEP failed to meet that standard because it appeared to be boilerplate rather than particularized to the student. For example, the reading goals in the student’s IEP were inadequate because they were based on the standard for other students in his grade, rather than the student’s individual needs which suggested that he was several grades behind other students his age.
As to the IEE reimbursement, the Court noted that the legislature intended that parents can obtain IEEs at public expense if the parent does not agree with the board’s evaluation. A board can object by filing a due process complaint to demonstrate that its evaluation is adequate or the IEE is otherwise not appropriate. The Court determined that the board waived its right to challenge the IEE because it failed to file a due process complaint. Accordingly, the Court upheld the trial court’s decision in favor of the mother.
- IDEA-Private School Reimbursement
Blount County Board of Education v. Bowens, 762 F.3d 1242 (11th Cir. Aug. 5, 2014)
This case involved a three-year-old child diagnosed with autism. After his initial diagnosis as developmentally delayed at the age of two, the child received assistance from the Early Intervention System of Alabama, a division of the Department of Rehabilitation Services that provides assistance to children up to age three pursuant to the IDEA. The child’s mother met with Early Intervention staff and participated in the creation of an individualized family service plan which would help determine what services and support the child would need. Once the child reaches the age of three, the local school board would be responsible for providing services pursuant to the IDEA. Shortly before the child’s third birthday, Early Intervention contacted the board to advise them that the child would soon be three and invited the board to a transition planning meeting with the family.
The planning meeting was attended by the mother and staff from both the board and Early Intervention. The board offered multiple placement options for the child, but the mother rejected them all. The mother ultimately decided that a private school would be best for the child during his pre-school years until he could be placed in kindergarten with the board. Another meeting was held to discuss placement options, but the board did not offer any new suggestions for the child’s placement. When the mother suggested the private school placement, the board employee said she thought it was an “excellent placement option”. The mother requested that the child meet with speech and occupational therapists monthly to prepare for his eventual entry into kindergarten and the board employee agreed. There was no discussion of other placement options or reimbursement of tuition at this or the subsequent meeting. The mother paid the tuition to the private school.
A few months later, a meeting was held to discuss the child’s IEP. All in attendance agreed that the private school was the most appropriate placement for the child and that no additional evaluations of the child were necessary. All agreed to the IEP, which included an acknowledgment that the private school would implement the IEP. Again, there was no discussion regarding reimbursement.
Several months later, the mother requested reimbursement for the tuition paid to the private school. The board employees conferred and decided that it would offer the child an IEP substantially similar to the one he had at the private school for the coming school year. The mother rejected that offer, insisting that the child would remain in private school and demanded reimbursement for both years. The board refused to reimburse the mother.
The mother requested a due process hearing to seek reimbursement for the cost of private school. The hearing officer determined that the board had failed to offer the child a free and appropriate education because the options it offered were insufficient. The hearing officer further determined that the board had acquiesced in the mother’s decision to place the child in private school and she should be reimbursed for the cost of tuition.
The board filed a suit in district court and the mother filed a separate suit seeking attorney’s fees and costs. After the cases were consolidated, the court ruled in favor of the mother. The board appealed.
The Eleventh Circuit noted that parents could seek reimbursement for private school if the board failed to provide FAPE, but the court had the discretion to determine whether the board had to pay and in what amount. For example, a court could reduce or deny the reimbursement if the parent failed to inform the IEP team that they intended to place the child in private school because the proposed placement was unacceptable. A court could also reduce or deny reimbursement if the parent prevented the board from evaluating the child, failed to give notice before removing the child from public school or if the parent behaved unreasonably.
The board argued that the mother failed to specifically request reimbursement at the transition planning meetings, but the Court disagreed. It held that the notice requirement only applied if the mother unilaterally placed the child in private school, but here, the board employee agreed that the child should be placed—a fact that the board did not dispute. Moreover, the Court noted that even if the mother had unilaterally placed the child in private school without notice, that fact would not represent an automatic bar to reimbursement, but only give the court the discretion to reduce or deny the reimbursement. Accordingly, the Court found in favor of the mother and ordered the board to reimburse her for the private school tuition.
- Title VII-Age & Race
Shumate v. Selma City Board of Education, 2014 WL 4233265 (11th Cir. Aug. 28, 2014)
This was a failure to promote case involving a white female cafeteria employee in her 50s. The employee, a longtime employee of the board, applied for multiple cafeteria manager positions. After being denied one or more promotions, she filed an EEOC charge while applying for other management positions. She was also considered for positions that she did not apply for, but she was not selected. She eventually sued the board and a principal for age and race discrimination and retaliation. After being initially denied summary judgment on a retaliation claim, the board defendants successfully moved the district court to reconsider its decision following the U.S. Supreme Court’s decision in Univ. of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013) which required the employee present evidence that retaliation was the “but for” cause for the adverse action. The employee appealed.
The Eleventh Circuit agreed with the employee that submitting an application was not one of the required elements for a prima facie case of retaliation, but found that she failed to establish a causal connection between her protected activity and the adverse action. The Court found it especially persuasive that the panel members voluntarily considered the employee for a promotion despite being aware of her lawsuit and despite the fact that she had not submitted an application. The Court also found that the employee failed to demonstrate that the district erred when it reconsidered her retaliation claim using the “but for” standard established by Nassar. Accordingly, the Eleventh Circuit affirmed the opinion in favor of the board defendants.
Matters of Interest
- Payroll Deductions
White v. John, 2014 WL 4798923 (Ala. Sept. 26, 2014)
This opinion represents another, perhaps final, chapter in the payroll deductions litigation—at least in state court. Members of AEA and ASEA (the Alabama State Employees Association) sued the state comptroller to block his implementation of guidelines that would be used to enforce the law. The trial court issued a preliminary injunction blocking the state comptroller from implementing the guidelines and the state appealed. The Supreme Court reversed the trial court holding that the comptroller was immune from suit and that the relief the plaintiffs sought—blocking enforcement of the guidelines—was inappropriate for a preliminary injunction. The Court reasoned that the guidelines were of little effect to the plaintiffs’ rights; rather the statute itself was the true threat, but the plaintiffs failed to challenge it.
Jayne is General Counsel & Director of Legal Advocacy for the Alabama Association of School Boards