August 2015 Court Report: Immunity-Corporal Punishment, First Amendment-Religious Literature, and Mandatory Reporting-Student Statements
Read the August 2015 issue of Court Report, which includes such topics as immunity-corporal punishment, First Amendment-religious literature, and mandatory reporting-student statements. This newsletter is an ACSBA member benefit .
August 2015 Issue of Court Report
Alabama Court of Civil Appeals
- Immunity - Corporal Punishment
Lewis v. Mitchell, -- So.3d --, 2015 WL 4389321 (Ala.Civ.App. Jul. 17, 2015)(previous opinion issued May 22, 2015 withdrawn)In this case, a mother sued her son’s teacher for administering corporal punishment. The mother sued for negligence, wantonness and assault and battery. The teacher moved for summary judgment arguing that he was entitled to immunity. The trial court granted the teacher’s motion and the mother appealed.On appeal, the mother argued that state-agent immunity was not appropriate because the teacher exceeded the scope of his authority by not complying with the board’s corporal punishment policy. The teacher claimed he paddled the boy because he did not complete his homework. The boy claimed he was paddled because he failed a test. While both parties agreed that it would violate board policy to paddle a student for making a bad grade on a test, there was a dispute regarding the reason for the punishment.
The teacher also maintained that he used only moderate force as mandated by board policy, but the mother submitted pictures showing bruising on the boy, which would have been inconsistent with board policy. In light of this evidence, the Court of Civil Appeals found a question of fact existed and summary judgment was inappropriate.
Following issuance of its original decision, the teacher asked the Court to reconsider its decision because it did not consider whether he was entitled to statutory or schoolmaster immunity provided teachers by law. Statutory immunity codified atAla. Code§16-28A-1 gives teachers immunity for corporal punishment as long as they comply with board policy. Because the Court had already determined there was a question of fact regarding the teacher’s compliance with policy, it held that he was not entitled to statutory immunity. Schoolmaster immunity provides that school employees standin loco parentis(in the place of a parent) to students and have the right to discipline them as long as the discipline is without malice or ill motives and does not inflict permanent injury. The Court held that violation of the board’s policy was evidence of malice and therefore summary judgment could not be granted on that basis. The Court reversed the trial court and remanded the case for further proceedings. The teacher has appealed the ruling to the Alabama Supreme Court.
- First Amendment – Religious Literature
Freedom from Religion Foundation v. Orange County School Board, -- Fed.Appx. --, 2015 WL 1965856 (11thCir. May 4, 2015)
In this case, the board permitted a Christian group to distribute bibles to students. The Freedom from Religion Foundation (FFRF) objected to the bibles, but in the alternative, asked to distribute its own literature, which included atheist, humanist and freethought materials. The board rejected most of the FFRF’s materials, but allowed some. The FFRF claimed the board illegally discriminated against the viewpoints reflected in the rejected materials, but ultimately passed out the allowable materials.
Days later, the FFRD sued the board for violating the First Amendment (viewpoint discrimination and prior restraint) and Fourteenth Amendment (equal protection) claiming the board treated them more harshly than the Christian group. After the lawsuit was filed, the board decided to let FFRF distribute all of the rejected materials, but the FFRF declined. As a result of the change in its position, the board moved to dismiss the case on the grounds that the FFRF’s claims were moot. The FFRF objected claiming that since the board still intended to review offered materials, the case should stand. The district court agreed with the board and dismissed the case. The FFRF appealed to the Eleventh Circuit.
The Court first reviewed the procedure the board used for distribution. The board permitted outside groups to passively distribute materials in its schools. Prior to any distribution, the district would review and approve or reject any such materials. Both parties agreed that the schools are a “limited public forum”.
The issue before the Court was whether the board’s decision to ultimately allow the challenged materials rendered the FFRF’s claims moot. Courts have no jurisdiction to consider moot questions. “The Constitution requires that there be a live case or controversy at the time that a federal court decides the case; it is not enough that there may have been a live case or controversy when the case was filed.” The Court made it clear to the district court that a defendant’s voluntary decision to stop the allegedly illegal conduct is not enough to automatically render the case moot since the defendant could conceivably return to its old ways. Rather, the Court must determine that it is clear that the illegal conduct will not recur. The Court noted that governmental actors like school boards, unlike private parties, enjoy a rebuttable presumption that they will follow the law. In this case, because the board made it clear that it would distribute the FFRF’s materials, there was no substantial likelihood that it would reoffend. Additionally, the Court noted that the FFRF’s failure to distribute its materials when given the opportunity by the board was not sufficient to keep the case alive. Finally, the Court held that FFRF’s prediction that the board would violate the Constitution in the future was too speculative. If that occurred, the FFRF could simply file another suit. Accordingly, the Court held that the matter was moot and affirmed the district court.
Attorney General’s Opinion
A.G. Op. 2015-049 (Jun. 8, 2015)
This opinion requested the proper procedure for filling a vacancy in the office of an elected superintendent. The opinion first addresses the question of whether Ala. Code§16-9-8 contemplates holding a special election if a superintendent dies or resigns during his term. The opinion notes that such a result is only appropriate if the superintendent dies before he takes office. The opinion then addresses the applicability ofAla. Code§16-9-11. This section addresses the procedure for filling vacancies for county superintendents, but only some of the provisions apply to both elected and appointed superintendents. Subsection (a) applies to both types of county superintendents and requires that the board announce in an open meeting its process and timeline for posting and choosing the superintendent within 90 days of the vacancy. It also gives the board 180 days to fill the position. Subsection (b) also applies to all county superintendents and gives the state superintendent the authority to withhold state warrants if a board has not filled the vacancy within 180 days and has not made reasonable progress towards that goal. Subsection (c) reflects the minimum posting requirements, but only applies to appointed county superintendents. Subsection (d) gives the board the authority to appoint a properly qualified interim superintendent for up to 180 days, but again, it appears to apply only to appointed superintendents.
AASB NOTE: While the Attorney General’s Office correctly noted that subsections (c) and (d) only apply to appointed superintendents, we believe those with elected superintendents can rely on these provisions as well.
Matters of Interest
- Mandatory Reporting – Student Statements
Ohio v. Clark, -- S.Ct. --, 2015 WL 2473372 (Jun. 18, 2015)
This case began when a preschool teacher noticed injuries to a three year old’s face. When the teacher asked the boy how he was hurt, the boy said his mother’s boyfriend hurt him. The teacher reported her suspicions and the man was arrested and charged with child abuse. The trial court decided that the three year old was too young to testify, but permitted his out-of-court identification of the man into evidence. Following his conviction, the man appealed to the Ohio Supreme Court. The Ohio Supreme Court held that because state law required the teacher to report suspected abuse, the teacher was acting as an agent of law enforcement. Therefore, the three year old’s statement could only be used as evidence if the teacher’s primary purpose for questioning the child was to address an ongoing emergency; not to determine a past event. The Ohio Supreme Court held that because the child was not in immediate danger at the time of the questioning, the out of court statement was not admissible. The state appealed the case to the US Supreme Court which held that the teacher’s obligation to report suspected abuse did not convert her into a law enforcement agent whose primary purpose was to develop evidence for a potential prosecution. Rather, the Court determined that in light of the potential for an ongoing threat to the child, the teacher’s primary purpose was to protect the student. Accordingly, the child’s out of court statement could be used as evidence in the criminal trial.
Jayne is General Counsel & Director of Legal Advocacy for the Alabama Association of School Boards