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November 2017 Court Report

03-Nov-2017

Read the November 2017 issue of Court Report, which includes cases involving public comments policies, First Amendment rights and the board’s liability for student injuries.

 Click the case names to read the complete opinions. This newsletter is an ACSBA member benefit.

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November 2017 COURT REPORT

Eleventh Circuit

J.S. v. Houston County Board of Education, -- F.3d --, 2017 WL 4351313 (11th Cir. Oct. 2, 2017)

J.S. was a young wheelchair bound student enrolled in both special education and regular classes. He had a full-time aide who assisted him throughout the day. On most days, the aide would take J.S. out of his regular classroom and let him do classwork in the weight room. At some point, J.S.’s mother became concerned that his aide was mistreating him. She concealed a tape recorder under his wheelchair for a few days and allegedly captured verbal and possibly physical abuse by one of his teachers and his aide. After the school was notified, the aide resigned and the teacher was nonrenewed. J.S. sued the board for removing J.S. from his regular classroom and the verbal and physical abuse in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The trial court granted summary judgment in favor of the board finding that the removal from the classroom was only a denial of FAPE (free appropriate public education) and that there was no evidence the board knew about any alleged verbal or physical abuse. J.S. appealed.

Both Title II and Section 504 make it illegal to discrimination on the basis of disability. To establish a violation of either law, a student must show 1) that he is a qualified student with a disability; 2) that he did not receive the benefits of a public service, program or activity; and 3) that the denial was based on his disability. J.S. argued that the trial court improperly cast his claims as an IDEA-guaranteed denial of FAPE, which guarantees specially tailored educational services, rather than Title II and Section 504’s protection against discrimination. While there may be overlap between FAPE claims and discrimination claims, discrimination claims require more than a simple failure to provide FAPE. Discrimination claims require bad faith, gross misjudgment or discrimination based solely on disability. Here, the Court determined that J.S. properly stated a discrimination claim under Title II and Section 504 and the trial court should have considered those claims.

The Court next determined whether J.S. established intentional discrimination. In order to establish claims under Title II and Section 504, the student must show that school officials were deliberately indifferent to the improper conduct. J.S. claimed multiple school officials had the ability to correct his removal from his classroom, including the principal, his special education teacher, his regular teacher and two coaches who would see him in the weight room with his aide. The principal received a single report that J.S. was being taken to the weight room and told the aide that she did not want him to continue that practice, but she did not follow up with him after that and did not notify J.S.’s parents of the problem. The Court determined that the principal was a person with the authority to correct the misconduct and that there was a question of fact as to whether she was deliberately indifferent. As to the special education and regular education teachers, the Court noted that it had not yet determined whether teachers are “appropriate persons” who can take corrective action, but decided that under the circumstances here, both teachers had at least some supervisory authority over J.S.’s aide and could have corrected the misconduct. The Court also found that there was a question of fact regarding whether the teachers were deliberately indifferent. As to the coaches, the Court found that they had no authority over the aide, and therefore, were not appropriate persons who could take corrective action. With respect to the board, the Court determined that there was a question of fact regarding whether the board was deliberately indifferent to J.S. being discriminated against by being removed from the classroom, but that there was not enough evidence to prove the board knew there was any verbal or physical abuse by J.S.’s aide.

Accordingly, the Court upheld the judgments entered in favor of the coaches and the judgment in favor of the board as to the claims regarding abuse. The Court reinstated claims against the principal, the teachers and the Board as to the claims regarding discrimination.

Barrett v. Walker County School District (Ga.), -- F.3d --, 2017 WL 4349090 (11th Cir. Oct. 2, 2017)

In this case, a Georgia teacher complained about the board’s public comment policy which controlled how and when members of the public could speak at school board meetings. The policy required citizens to first meet with the superintendent, but there was no provision stating how quickly the meeting had to occur. Once the meeting was held, the superintendent is given an opportunity to investigate the issue, if necessary, and then report back to the citizen within ten days of the initial meeting. Only then can the citizen speak at the board meeting. The teacher, who was also president of the local employee’s association, claimed that he had spoken numerous times at board meetings to praise school programs or officials, but was not required to follow any process or policy until he began to be critical of the board. The teacher sued the superintendent and board claiming that the public comment policy was being used to censor people who may criticize the board and its employees in violation of the First Amendment. The trial court found that the policy gave the superintendent unlimited discretion to stall and frustrate a citizen’s attempt to speak at the board meeting because he alone controlled the timing of the initial meeting. The trial court found that the policy violated the First Amendment on its face and granted a permanent injunction against the board’s policy and the board appealed.

The Court first noted that any law or policy that places unbridled discretion in a single official with no standards or checks is unconstitutional under the First Amendment. Such a policy would potentially cause citizens to self-censor to appease the official or prevent courts from determining whether the official’s decision was proper. The Court also noted that permitting unlimited time for the official to act can be unconstitutional. Here, there was no requirement for the superintendent to have the initial meeting with the citizen within a certain number of days. The Court held that this constituted unbridled discretion in violation of the First Amendment. Accordingly, while the Court recognized the board could do away with the public comment section of the meeting altogether, it held that its current policy was unconstitutional as long as it gave the superintendent unbridled discretion to frustrate interested speakers. The Court upheld the trial court’s decision in favor of the teacher and remanded the case back for further proceedings.

Gaines v. Wardynski, -- F.3d --, 2017 WL 4173625 (11th Cir. Sept. 21, 2017)

This case involved a teacher who was also the daughter of a local county commissioner. The commissioner made public comments in the media that were critical of the board and superintendent’s efforts to end a longtime desegregation case. Soon thereafter, the teacher was denied a promotion, allegedly in retaliation for the father’s critical comments. The teacher sued the superintendent for violating her First Amendment right of free speech based on her father’s media comments and her First Amendment right of freedom of intimate association based on her relationship to her father. The superintendent moved for summary judgment arguing in part that he was entitled to qualified immunity because, even assuming the allegations were true, it was not “clearly established” that he could not deny a promotion based on a family member’s critical comments. The trial court denied the superintendent’s motion and he appealed.

To receive qualified immunity, an official must show that he was acting within his discretion. If he does that, the plaintiff must show that her rights were violated, and at the time of the violation, those rights were so clearly established that a reasonable official would know his conduct was illegal. The Court assumed for the sake of the appeal that the superintendent denied the teacher the promotion in violation of her First Amendment rights. The issue before the Court became whether those rights were so clearly established at the time of the superintendent’s action that he had fair warning his conduct was illegal. There are three ways to demonstrate a right is clearly established: 1) there was a substantially similar case decided prior to the action by the US Supreme Court, or in this case, the Eleventh Circuit or Alabama Supreme Court; 2) a broader principle was clearly established that would bear on the facts of this action; or 3) that the conduct was such an obvious violation that prior case law is unnecessary.

As to the free speech claim, the Court determined that the conduct here was not so outrageous to trigger the second and third methods, so the Court focused on the first method of substantially similar cases decided in the courts. The case relied on by the trial court to establish that the action was illegal did not apply because it involved the employee’s own speech--not his relative’s speech. The teacher relied on two cases to show the law was clearly established. The first involved retaliation against an employee because his relative filed an EEOC charge under Title VII, but Title VII and the First Amendment are not substantially similar enough to constitute precedent. The second was more closely aligned to the facts here, but it involved a district court case. District court cases cannot be used to show that a right is clearly established; only US Supreme Court, circuit level cases and state supreme court cases.

As to the freedom of association claim, the Court determined again that the teacher failed to show that it was clearly established at the time of the promotion decision that an official could not take action against an employee based on their family relationships. Absent that precedent, the superintendent did not have fair warning and he was entitled to qualified immunity as to both First Amendment claims. The Court reversed the trial court and ordered judgment in favor of the superintendent.

U.S. District Courts

Jones v. Cherokee County Board of Education, 2017 WL 4517248 (N.D. Ala. Oct. 10, 2017)

Editor’s Note: We do not routinely report on district court cases, but given the importance of this holding and the potential impact on future litigation, we include it for your information.

This case involved a high school student assaulted by a parent on school property. During football practice, two students got into a minor scuffle on the field. The stepfather of one of the students entered the field and attacked the minor plaintiff. The plaintiff’s mother did not learn of the attack until her son came home with injuries that night. The stepfather was ultimately arrested and convicted of assault. The superintendent also banned the man from attending any further sporting events in the county. The mother sued the board in federal court for violation of her son’s Fourteenth Amendment right to due process and various state law claims. She claimed that the school officials had a duty to protect her son from harm while he was in their custody.

The trial court noted that there can be a duty of protection when the government has a custodial relationship with a person, such as inmates confined to prison or persons involuntarily committed to mental institutions. However, there is no general duty of protection for students because the school does not have custody of them. See Nix v. Franklin Cty. Sch. Dist., 311 F.3d 1373, 1378 (11th Cir. 2002). Because there is no general duty of protection, the plaintiff has to show conduct that is not simply intentional, but “shocks the conscience”, to establish a constitutional violation. Here, the Court determined that the board’s conduct was not directly responsible for the student’s injuries and did not shock the conscience. Accordingly, the trial court dismissed the federal claims and remanded the case to state court to handle the remaining claims.

 

-Jayne Harrell Williams

Jayne is General Counsel &

Director of Legal Advocacy for the

Alabama Association of School Boards