School Law Reporter EDUCATION LAW ASSOCIATION Lawrence F. Rossow, Editor November 1998 Vol. 40, No.11 The University of Oklahoma TABLE OF CONTENTS INTRODUCTION and COMMENT* INTRODUCTION AND COMMENT .............. 105 by Lawrence F. Rossow University of Oklahoma ELEMENTARY AND SECONDARY EDUCATION ............................................. 107 Tort Liability ..................................................... 107 The Bible is Back! Negligence .................................................. 107 Immunity .................................................... 107 Peck v. Upshur County Board of Education Pupils ................................................................ 108 Students with Disabilities ........................... 108 On August 14, 1998, the Fourth Circuit held that a Constitutional Rights .................................. 109 school board policy that permits the limited, passive distri- Teacher & Administrator Employment ............. 110 bution of Bibles and other religious materials during school Dismissal, Nonrenewal & RIF ................... 110 hours, except to very young, impressionable students, did Discrimination ............................................ 110 not violate the Establishment Clause. Peck v. Upshur Desegregation .................................................... 111 County Board of Education (1998 WL 5596886 4th Cir. First Amendment ............................................... 111 (W.Va.)). Religion ...................................................... 111 For many year, Upshur County School Board allowed Speech ........................................................ 111 nonstudent, private groups to distribute literature through- out the schools. The various groups have included, among HIGHER EDUCATION .................................... 111 others, Boy Scouts, Girl Scouts, and Little League. While Negligence .................................................. 111 the board hand no formal policy addressing this practice, Immunity .................................................... 111 school officials review all materials before allowing them Students ............................................................. 112 to be distributes. The materials are checked to ensure the Students with Disabilities ........................... 112 following: 1) that they are age “appropriate” 2) that they are Discrimination ............................................ 112 not “harmful to children” and 3) that they will not cause Faculty & Administrator Employment .............. 112 “[m]ajor disruption” in the school. Id. at *1. Discrimination ............................................ 112 However, in 1989 the board adopted a policy that Financial Aid & Student Loans .................. 113 forbade the distribution of religious and political literature. First Amendment ............................................... 113 This action was prompted by an incident whereby “the Free Speech ................................................ 113 Gideons” visited classrooms, talked to students, and dis- Miscellaneous .................................................... 113 tributed Bibles. In 1994, various individuals and la local minister named Ed McDaniels approached the district’s superintendent. They asked if Bibles and other religious materials could be placed on a predetermined table where TABLE OF CASES ........................................... 114 students could pick up the information if they so desired. Id. at *2. ELECTRONIC CITES UPDATE ..................... 114 Fearing legal action, the board decided to allow ‘McDaniels and his supporters to make the material avail- U.S. SUPREME COURT DOCKET ................. 114 able to Upshur students. However, the board imposed several restrictions on the availability of the Bibles: 1) The private groups making the Bibles available were to be responsible for setting up the tables on which the Bibles would be displayed. * Any opinions expressed or implied are those of the Editors and may not represent official positions of the Education Law Association. Published monthly by the Education Law Association ISSN 1059-4094 106 School Law Reporter November 1998 2) Bibles not picked up by students during the day were REGIONAL REPORTERS to be removed at the end of that day the by the end of that Amy Abernethy ....................................... Northeastern/New York day by the groups responsible for the display. Larry D. Bartlett 3) No teacher or other school employee was to partici- University of Iowa .................................................... Northwestern pate in these or any other custodial activity relating to the Gus Douvanis Bible displays. University of Georgia ............................. Higher Education (State) 4) The table were to be placed in a location in each Irving C. Evers, Attorney at Law ...................................... Atlantic school ... that was accessible to students ... “where students Ralph Hall normally congregate and would not feel they were being Appalachian State University .................................... Southeastern watched or pressured into taking a Bible.” Kenneth Lane 5) There was to be a sign on each table that read “Please California State University feel free to take one...” at Bernadino .................................................. California Appellate 6) The source of the Bible was not to be identified. Timothy Letzring 7) No one was allowed to stand at the table to encour- University of South Carolina .............. Higher Education (Federal) age or pressure students to take Bibles. Albert Miles 8) No one was allowed to enter classrooms to discuss University of Alabama .................................................... Southern the Bible’s availability. Louis Millhouse 9) The schools were not to announce that Bibles were Spotsylvania County Schools....................Northeastern/New York available or hold any school assembly in connection the Johnny R. Purvis availability of the Bibles. Id. at *3. University of Southern Mississippi .......................... Southwestern The superintendent stressed to the school officials that Jill Bush Raines the schools were “not sponsoring or promoting the dissemi- University of Oklahoma .................................................. At Large nation of Bibles...” Id. However, appellants filed suit to Marshall Strax prevent the passive distribution of Bibles in the schools. St. Elizabeth College ....................................................... At Large The United States District Court for the Northern William E. Thro, Assistant Attorney General Office of the Attorney General of Colorado ....................... Pacific District of West Virginia held that the availability of the R. Craig Wood Bibles did not violate the Establishment Clause. Rather, University of Florida .............. Elementary & Secondary (Federal) allowing the passive distribution was a neutral act. The Michael Yates court reasoned that the board had created a “‘limited Missouri Southern State College .................... Federal Supplement purpose’ forum to which selective access is permitted for the purpose of enhancing the education mission of the EDITORIAL public schools.” Id. at *4. In the court’s view, the availabil- Lawrence F. Rossow ity of the Bibles would expose children to a wide variety of University of Oklahoma ....................................................... Editor views. The court reasoned that the benefits to a religion Bonnie N. Hefner were merely incidental. Id. University of Oklahoma .................................. Research Assistant The court stated that the distribution was neutral. It Laural Logan added that a “‘reasonable student’ would not be likely to University of Oklahoma ................................... Editorial Assistant view the Bible distribution as an endorsement because that student would know that the board allows other organiza- EDUCATION LAW ASSOCIATION tions to distribute literature...” Id. However, the court Jeff Horner ....................................................................... President added that the passive distribution might need to be modi- Robert Wagner ................................................ Executive Director fied if younger children were unable to differentiate be- Sheila Sandapen .............................................. Publications Editor tween private distribution and school endorsed distribu- Mandy Bingaman ......................................... Program Coordinator tion. Id. at *5. In addition, the court required that a dis- Kathleen Vacek ...................................... Administrative Assistant claimer sign be placed on the table declaring: “These Judy Pleiman .............................................................. Bookkeeper materials are neither sponsored nor endorsed by the Upshur County Board of Education or its employees. The view and School Law Reporter information contained in the materials do not reflect the is published monthly by approval nor disapproval of this Board or the school admin- Education Law Association istration.” Id. 300 College Park, Dayton, Ohio 45469-2280 On appeal to the Fourth Circuit, the appellants argued Phone: 937-229-3589 Fax:937-229-3845 E-mail: email@example.com Website: http://www.educationlaw.org that the distribution of the Bibles was far from neutral. ISSN 1059-4094 Rather, the board tried to appease a ‘vocal’ group of constituent. The appellants found that the board’s actions promoted religion to students who are an entirely “captive Vol. 41, No 5 School Law Reporter 107 audience.” Id. at *7 The court rejected this argument. Relying on Rosenberger v. Rector of University of Vir- ginia, 515 U.S. 819 (1995), the Fourth Circuit reasoned that ELEMENTARY AND SECONDARY the restrictions placed on the distribution of the Bibles actually put the “private religious speech at a disadvantage vis-a-vis most other speech, because it precludes religious speakers from delivering their messages to Upshur County Tort Liability students face to face.” Peck, 1998 WL 559686 at *7. The Fourth Circuit held that “...providing equal forum Negligence access to private speakers... does not violate ...the Estab- lishment Clause simply because the ...speaker in the forum Payne v. Twiggs County School District, 501 S.E.2d happens to deliver a religious message...” Id. at *13. Fur- 550 [127 Educ. L. Rep. 448] (Ga. Ct. App. 1998). A student ther, “...[t]he state does not violate the Establishment Clause was cut in the face with a knife by another student during when it permits private entities to passively offer the Bible a fight on the school bus. Several weeks earlier another or other religious material to secondary school students on fighter between the two students occurred. At the time, the a single day during the year pursuant to a policy of allowing bus driver reported the incident to the assistant principal. private religious and nonreligious speech in its public When questioned, the student, who was subsequently schools.” Id. at *16. injured, told the assistant principal that the other student Relying on Lee v. Weisman, 505 U.S. 577 (1992), the had a knife and had threatened her. However, the assistant dissent found that schools and their officials have an principal never saw the knife in the student’s possession. incredible authority and coercive power over students: The school district’s written policy recommended expulsion [t]he State exerts great authority and as the sanction against students who brought weapons on coercive power through mandatory campus. The injured student brought a negligence suit attendance requirements, and because of claiming the bus driver and the assistant principal failed to the students’ emulation of teachers as carry out the ministerial act of enforcing the weapons role models and the children’s policy. The school driver, bus driver, and assistant principal susceptibility to peer pressure, the Court moved for summary judgement based on sovereign and itself has pointed out the frequency with official immunity. The trial court granted summary judgment which it has been required to invalidate and the student appealed. The Court of Appeals affirmed, statutes which advance religion in public finding that the task of school officials “to monitor, supervise, elementary and secondary schools. Peck, and control students was discretionary action protected by 1998 WL 559686 at *18. the doctrine of official immunity.” The Court rejected the Peck shows how religious speech can be protected student’s argument that the bus driver and assistant principal even in a school environment. A long debated point in had no discretion. The Court concluded that the investigation Constitutional analysis concerns the question of religious by the assistant principal regarding the allegation that the expression “as speech.” When religious activities occur in attacking student had previously threatened her with a knife the public school whether those activities are protected or was discretionary, not ministerial in nature. not is an answer for the Establishment Clause not the Speech Clause. One cannot simply choose from the Immunity Constitution shelf of Establishment Clause of Speech Clause when the expression is religious. However, Peck gives the Quinn v. Mississippi State University, 1998 WL exception. When a limited open forum is created by school 350912 (Miss.). Twelve-year-old Brandon Quinn was authorities, as long as all speech meets the condition of the attending the Mississippi State Baseball Camp in Starkville, limit i.e. disclaimers, location of speech, then religious Mississippi, on June 22, 1992. While being instructed on speech can be protected “as speech.” hitting by coach Keith Kosh, Brandon was hit in the mouth with a bat. Since the Quinns paid an “admission fee” to have their son, Brandon, attend the baseball camp at Mississippi State University, they entered into an implied contract with the university. This contract carried with it the implied promise that the university would provide a safe instructional environment for the campers attending the baseball camp. The Supreme Court of Mississippi held that when Brandon was hit in the mouth with the bat, the university breached its contract with the Quinns. A part cannot use an anticipatory release to escape liability for tortious acts. 108 School Law Reporter November 1998 Pupils Mr. & Mrs. H. ex rel. D.H. v. Ashford Bd. of Educ., 1 F.Supp.2d 154 [126 Educ. L. Rep. 932] (D. Conn. 1998). Students with Disabilities The plaintiffs were held to be prevailing parties for pur- poses of recovery of attorney fees under the IDEA. The fact Gadsden City Bd. of Educ. v. B.P., 3 F.Supp.2d 1299 that the parties resolved their issues through a stipulation [127 Educ. L. Rep. 234] (N.D. Ala.1998). Following a which was subsequently entered as a final order by a classroom incident in which two fourteen-year-old men- hearing officer rather than through adjudication did not tally retarded students began fighting, throwing items, and preclude the plaintiffs’ recovery. Any change in the board’s destroying school property, the board sought a TRO, pre- position and the ultimate receipt by the student of the liminary injunction and final injunction authorizing it to benefits delineated in the final order was a direct result of suspend or remove the students from school. After a state the parents’ request for an administrative hearing. The court judge granted a TRO, the parties signed a stipulation enforceable order enabling the student to receive services, order for a preliminary injunction prohibiting the students modifications and supplements not previously made avail- from returning to school pending further order of the court. able materially altered his legal relationship with the board, As a result of the agreement and injunction, the students are and the alterations were not de minimis. now involved in a “homebound program.” The legal representative of the students removed the case to federal King v. Floyd County Bd. of Educ., 5 F.Supp.2d 504 court arguing the original request for a preliminary injunc- [127 Educ. L. Rep. 813] (E.D. Ky. 1998). In an action for tion was premature and seeking an order requiring the recovery of attorney fees as prevailing parties under the board to exhaust all administrative remedies prior to seek- IDEA, the court held that the plaintiffs’ claim was not time ing judicial intervention in this and future IDEA cases. The barred. The appropriate statute of limitations was the state board sought a declaration that the case was moot. The five-year statute governing actions upon a liability created court agreed that the mutually agreed upon change in the by statute when no time is stated in the statute rather than students’ educational placement temporarily mooted the the 30-day period for filing an appeal of an administrative exhaustion question. However, because the students would order. In determining the amount of fees to be awarded, the continue to create a substantial risk of harm if they returned court reduced the billable hourly rate of one of the plain- to school, the case was not moot because it was capable of tiffs’ attorneys with only three months experience from repetition yet evading review. Because the expedited $100 to $70 per hour. Expenses for time spent doing basic hearing mechanism provided by the IDEA was optional, it research to familiarize counsel with special education law was unclear whether such a procedure was available in the were stricken. The plaintiffs could not recover for time defendant school system, and even if the procedures were spent in bringing an injunctive proceeding in state court in effect unique circumstances surrounding a particular which was premature, voluntarily dismissed, unnecessary case might make an expedited hearing inadequate, the court and provided no relief. All of the plaintiffs’ counsel’s refused to issue an order requiring exhaustion in all future Westlaw charges were stricken on the basis that research is IDEA cases. factored into an attorney’s hourly rate. Counsel’s post- hearing monitoring of the case was not reimbursable. Ms. M. ex rel. Y.O. v. New Britain Bd. of Educ., 1 Billing for 19.8 hours for a single day was not credible and F.Supp.2d 133 [126 Educ. L. Rep. 917] (D. Conn. 1998). excessive. The court felt that there was no way the attorney The plaintiffs were prevailing parties entitled to an award could have maintained a concentration level sufficient to of attorney fees under the IDEA. The parties entered into sustain billings over that period of time. a stipulation agreement adopted as a final order by a hearing officer which materially altered the legal relationship be- Breen ex rel. Breen v. St. Charles R-IV Sch. Dist., 2 tween the student and the board. The plaintiffs obtained an F.Supp.2d 1214 [127 Educ. L. Rep. 133] (E.D. Mo. 1997). enforceable order which enabled the student to receive The parents of a child with cogentital nystagmus, mild particular education services that had previously been Tourette’s Syndrome, mild attention deficit disorder and unavailable. As a result of the hearing and negotiated drug dependency alleged that the local school district failed settlement, the student obtained evaluation by an indepen- to provide him with a free appropriate public education and dent psychologist and evaluation of his language function that local and state officials deprived him of due process. and the effect of bilingualism on his school performance. The court upheld the findings of the due process panel and Based upon the results of the evaluation, the board agree to state review officer that the IEP developed by the local provide special education services to the student which school district was designed to meet the student’s specific were not previously offered. educational needs, and that the private school in which he was unilaterally placed by his parents was lacking in several areas. As the court had before it a fully developed factual record, there was no “solid justification” to permit Vol. 41, No 5 School Law Reporter 109 the plaintiffs to submit additional evidence. The plaintiffs Ronnie Lee S. v. Mingo County Bd. of Educ., 500 waived any objection they had to the state agency’s failure S.E.2d 292 [126 Educ. L. Rep. 506] (W. Va. 1997). An to appoint an advisory attorney for the hearing panel. The elementary school autistic child was frequently strapped to parties were informed by letter from the agency that in its a chair by means of a vest-like device known as a “love opinion the provision of the state law did not apply to bug.” The parents of the child had previously filed suit hearing panels empowered prior to the new law’s effective seeking a “due process hearing” under IDEA alleging the date. Neither party responded to the letter or objected to the child was denied “a free appropriate public education.” A lack of an advisory attorney at the hearing. settlement was reached between the parents and school board focusing on the admission of the child to the school, Borough of Palmyra Bd. of Educ. v. F.C., 2 F.Supp.2d acknowledgment of his autistic behavior, and the 637 [127 Educ. L. Rep. 113] (D. N.J. 1998). In an action development of goals and objectives regarding an brought by the parents of a student with a severe case of individualized program of education. No mention was attention hyperactivity disorder, an ALJ ordered the board made of use of the “love bug.” Later in the year the parents to reimburse the parents for the costs of the student’s instituted an action seeking damages and injunctive relief private placement from the time of his enrollment until the regarding the use of the love bug claiming its use caused board offered him a free appropriate education. The board great psychological and emotional stress, developmental moved for a stay of the ALJ’s decision pending the outcome delays, trauma, fear and pain and suffering. The complaint of its appeal and the parents requested a preliminary alleged violation of due process, his rights to an education injunction compelling the board to comply with the ALJ’s and to be free of excessive punishment, assault and battery, decision. Applying the same standards for a stay of an intentional or recklessly inflicted severe emotional distress administrative decision and an application for a preliminary and discrimination based on the child’s disability. The trial injunction, the court granted the parents’ request and denied court granted summary judgement for the school board the board’s motion. Since the ALJ’s ruling appeared to be finding that the action was (1) precluded by IDEA in that supported by the record, the parents were more likely to the parents had not exhausted their administrative remedies prevail on the merits. The relatively minor drain on the under the Act and (2) the action was precluded by the board’s budget surplus of 3% was outweighed by the settlement agreement executed previously. The Supreme irreparable harm the student would suffer if he were to no Court of Appeals reversed, finding there was an issue of longer financially able to attend the private school providing genuine fact as to the reach of the settlement agreement him with a FAPE. In light of the extraordinary circumstances between the parties and the parents were not required to where the prevailing party’s financial inability to post a exhaust their administrative remedies under IDEA and its security bond would deprive them of the very benefits of state counterpart. the injunctive relief to which they were entitled, the bond requirement was waived. Constitutional Rights Gonzalez v. Puerto Rico Dep’t of Educ., 1 F.Supp.2d. Pirschel v. Sorrell, 2 F.Supp.2d 930 [127 Educ. L. 111 [126 Educ. L. Rep. 910] (D. Puerto Rico 1998). In an Rep. 124] (E.D. Ky. 1998). A high school student was action for recovery of attorney fees as prevailing parties suspended for possessing alcohol at a “school-sponsored under the IDEA, the plaintiffs argued that because of the activity” after he was caught disposing of beer in the lack of legal counsel in Puerto Rico with expertise in IDEA parking lot of a school in another county during a basketball law and because the defendant retained a law firm from tournament in which his school was playing. The plaintiff Washington, D.C. to represent its case, the relevant legal argued that since he was attending a tournament as a community should include Washington, D.C. The plaintiffs spectator at an off-campus event where he did not require argued that their lead counsel should be entitled to a rate of permission to attend, his actions were beyond the scope of $175 per hour for office work and $200 per hour for trial the school’s authority. The court held that in light of the work. In rejecting the plaintiffs’ claim, the court held that school’s function of teaching students the shared values of the relevant rate was the amount normally paid in the a civilized order, its interest in not being perceived as community in which the action or proceeding arose, not the placing its imprimatur on improper conduct, and interest in amount the party’s lawyer might be paid by willing clients. promoting the safety of its students, attendance at a sporting Evidence indicated that an experienced trial lawyer’s work event in which one’s school is a participant, regardless of in Puerto Rico is billed at $150 per hour. Adjusting for the where played, is a school-sponsored activity. Where the complexity of work and skill required in IDEA cases, the principal orally communicated the grounds for the suspen- court awarded the plaintiffs’ attorneys $125 per hour for sion and neither the student nor his father denied the office work and the lead counsel $175 per hour for trial charges, the fact that the principal misstated that the student work. Because the local counsel did not make any was being suspended for possession of alcohol on school presentations at trial and his participation was not as property did not deprive the student of procedural due extensive, his hourly trial rate was reduced to $135. process. 110 School Law Reporter November 1998 Teacher & Administrator Employment Kanawah County Bd. of Educ. v. Hayes, 500 S.E.2d 547 [126 Educ. L. Rep. 515] (W. Va. 1997) A school Dismissal, Nonrenewal & RIF teacher for 22 years who had consistently been evaluated as “excellent” or “exceeds expectation” was accused by a Sekor v. Capwell, 1 F.Supp.2d 140 [126 Educ. L. Rep. seventh grade female student of patting her on the buttock 124] (D. Conn. 1998). Based on the findings of a hearing while thanking her for helping him collect lunch money. panel that a tenured teacher although competent to teach The incident was reported to the school counselor by the business was not competent to teach English and social student. The principal in turn reported the incident to the studies, the school board terminated her employment. While superintendent. A pre-termination hearing for immorality the state case was pending on appeal, the plaintiff filed an was held at which the student and her friend, who was age discrimination suit in federal court alleging that the present when the incident occurred, testified that the touch- board terminated her employment in order to save money ing was on the buttock. The teacher was terminated. A by hiring a younger, less expensive teacher. A stay was Level IV Grievance Hearing was requested. Following a granted in federal court until there was a final outcome in hearing in which the student’s friend indicated that the state court. The district court then rejected the plaintiff’s touching was on the student’s side above the waist, the ALJ ADEA claim on the grounds of res judicata. The court held found that the school board failed to meet its burden of that a decision of the state supreme court involving the proof. The circuit court affirmed the finding that an same parties permitting a school board to terminate a appellate court may not reverse a lower tribunal’s conclu- tenured teacher competent to teach in one subject, but sion under the clearly erroneous standard if the conclusion incompetent to teach in one or more other areas in which is plausible when viewing the evidence in its entirety. The she is certified, precluded federal adjudication of the Supreme Court of Appeals of West Virginia affirmed. plaintiff’s age discrimination claim. The court held that the plaintiff’s age discrimination claim and the state appeal for Noncertified Personnel Employment wrongful termination arose from the same transaction or series of transactions. The plaintiff had an adequate Dismissal, Nonrenewal & RIF opportunity to litigate her age discrimination claim in state court. The fact that the state court’s ruling did not reach the Wood County Bd. of Educ. v. Smith, 502 S.E.2d 214 merits of the age-related arguments did not thwart the res [127 Educ. L. Rep. 1112] (W. Va. 1998). A school system judicata effect of the resulting judgment. was required to provide full-day kindergarten instead of a half-day program. This change necessitated the elimina- Figueroa v. Fajardo, 1 F.Supp.2d 117 (D. Puerto Rico tion of extracurricular school bus driver positions which 1998). The employment of a teacher who was arrested for had serviced the half-day kindergarten programs. The possession with intent to distribute cocaine and marihuana school board replaced the less senior drivers from other was terminated. The plaintiff alleged that she was “disabled” extracurricular driver positions with the drivers whose for purposes of the ADA and Rehabilitation Acts because positions had been eliminated by the kindergarten change. she was enrolled in a drug rehabilitation program and was A grievance was filed by the less senior drivers. The ALJ no longer using drugs at the time of her dismissal. The concluded the reduction in force procedures established by defendants argued she was not disabled within the meaning the W.Va. Code did not apply to extracurricular positions of the relevant law because at the time she was fired she was and thus ordered the board not to reinstate the grieving less a “current” drug user. In rejecting the plaintiff’s claim the senior drivers. The circuit court reversed. The Supreme court held that the phrase “at present” did not mean that Court of Appeals affirmed finding that the elimination of drugs must have been taken at the precise moment the half-day kindergarten routes and resulting elimination of person was fired. The crucial determination was whether extracurricular school bus driver positions constituted a her drug use was recent enough for the defendants to reduction-in-force as a matter of law and the board was reasonably conclude that the drug use was currently a required to follow the statutory procedures. continuing problem. Even assuming the plaintiff was a “disabled” individual, she failed to establish discriminatory Discrimination motive. Her termination resulted from her misconduct of unlawful drug possession, not her drug dependency. The Phair v. Montgomery County Pub. Sch., 3 F.Supp.2d plaintiff also alleged that her rights under the Drug Free 644 127 Educ. L. Rep. 196] (D. Md. 1997). The plaintiff, a Workplace Act were violated because the defendants 59-year old woman born and educated in Poland with failed to provide her with an opportunity for rehabilitation undergraduate and graduate degrees, served as a teaching after her arrest. Because the illegal activity at issue took assistant in an ESOL program. After the defendants failed place after hours, outside the work setting and only to promote her to the position of full-time teacher, she filed convictions in the workplace are covered by the act, the a complaint with the EEOC which was dismissed. She then plaintiff’s claim failed. filed suit alleging age discrimination in violation of the ADEA and retaliation in violation of Title VII. The court Vol. 41, No 5 School Law Reporter 111 held that in light of the evidence that the plaintiff received the merits, their motion for injunctive relief was denied as substandard performance evaluations both before and after to the Bible History I class. Citing extensive historical, the filing of her complaint with the EEOC and that statistics literary and legal biblical allusions, the court held that showed the school system hired a substantial number of whatever the private intentions of the defendants may have teachers within close proximity to the plaintiff’s age, her been, the board stated a secular purpose for the proposed age discrimination and retaliation claims failed. course in Old Testament history and literature. Without some record of actual classroom instruction, the court was Desegregation unable to adequately evaluate the second and third prongs of the Lemon test. Reed v. Rhodes, 1 F.Supp.2d 705 [126 Educ. L. Rep. However, the court held that the opponents established 951] (N.D. Ohio 1998). In an ongoing school desegregation a substantial likelihood of prevailing on the merits of their case the state board of education, its superintendent of claim that the proposed New Testatment course violated public instruction, and the Cleveland city school district the Establishment Clause. The curriculum included filed a motion seeking an order declaring achievement of references to the resurrection of Jesus Christ which forms unitary status and releasing the defendants from all further the central statement of Christian religious faith. The court remedial obligations under a previous consent decree other found it difficult to conceive how the resurrection and than those specifically designated to continue until July 1, miracles could be taught as secular history and could only 2000. The court granted the defendants’ motion for be interpretated from a religious standpoint. declaration of unitary status. It held that the defendants had complied to the extent practicable with remedial provisions of the consent decree relating to such areas as cooperation Speech universities and business institutions, magnet schools, Love v. City of Chicago Bd. of Educ., 5 F.Supp.2d extracurricular activities, staff development, student 611 (N.D. Ill. 1998). Three elementary school teachers governance counseling, community relations, testing and filed suit against their principal and school board alleging tracking, reading programs and management and finance. they were retaliated against for exercising freedom of The school district seeking declaration of unitary status was speech. Acts of retaliation included false performance required to rebut the presumption that current disparities evaluations, preventing summer school teaching, and en- between reading test scores achieved by African-American couraging other teachers to act in a hostile manner towards students and other students were the result of unconstitutional the plaintiffs. In denying the defendants’ motion to dis- conduct where the consent decree had originally found that miss, the court held that the plaintiffs’ remarks regarding reading deficiencies were the result of an impermissible the defendants’ improper operation and implementation of dual system. The court found that socioeconomic factors the special education inclusion program and treatment and were the primary cause of disparities in achievement on segregation of disabled students was on a matter of public reading tests between African-American and other students. concern. Escalating inner city minority student absenteeism, dropout rate suspension and expulsion rate, and low academic achievement were not attributable to local school administration. HIGHER EDUCATION First Amendment Tort Liability Religion Negligence Gibson v. Lee County Sch. Bd., 1 F.Supp.2d 1426 [127 Educ. L. Rep. 85] (M.D. Fla. 1998). The board Gross v. Florida Corp., 1998 WL 552801 [128 Educ. adopted a two-semester high school Bible history course. L. Rep. 1346] (Fla. App. 4 Dist.). Bethany Jill Gross, a The board accepted recommendations of counsel and graduate student attending Nova Southeastern University, approved Bible History I – the Old Testament. The board brought negligence action against university for injuries subsequently approved Bible History II – the New Testament sustained when she was criminally assaulted while doing - based on the curriculum of the National Council on Bible an off-campus internship. The Circuit Court granted sum- Curriculum in Public Schools without the numerous mary judgment in favor of the university. The student modifications recommended by school counsel. Opponents appealed. The District Court of Appeal of Florida found of the proposed courses sought a preliminary injunction reason for the appeal. The court concluded that the univer- preventing them from being taught. Because the plaintiffs sity had a duty to the student who was sexually assaulted, failed to demonstrate a substantial likelihood of success on in the limited context of its mandatory and approved 112 School Law Reporter November 1998 internship programs, to use ordinary care in providing However, the claims were ultimately dismissed because the educational services and programs, and reversed and re- student-athlete was unable to maintain enough claims to manded. demonstrate a continuing violation. This was needed in order to fall within the statute of limitations. Immunity Hopwood v. State of Texas, 999 F. Supp. 872 (W.D. Emberg v. University of Maryland Univ. College Tex. 1998). On remand to the district court, the court had to Asian Div., 3 F. Supp. 2d 1127 [127 Educ. L. Rep. 219] (D. decide whether any of the four rejected nonminority appli- Hawaii 1998). Two faculty members of the University’s cants to University of Texas Law School were entitled to military base program in the Asian Division were injured any monetary damages. After a lengthy analysis, the court while riding bikes on base. They filed this action to find out held that the Law School had demonstrated that the plain- whether the Defense Base Act provided them with any tiffs would not have been admitted under a constitutional action for damages. The court held that since the Division admission process. Therefore, no money damages were was a part of the State of Maryland, it benefitted from that awarded. The court did provide some alternative results if state’s sovereign immunity. One possible exception to any of the plaintiffs won on appeal. It also awarded the sovereign immunity could have applied, but the court held plaintiffs attorneys’ fees and some costs. the plaintiffs’ failure to include certain parties as defen- dants prevented the application of that exception. Smith v. University of Washington Law Sch., 2 F. Supp. 2d 1324 (W.D. Wash. 1998). Group of unsuccessful Students law school applicants filed suit claiming the law school’s admissions process utilized racially discriminatory prac- Students with Disabilities tices. Law school moved for summary judgment and the applicants moved for class certification. Court denied the Rossomando v. Board of Regents of Univ. of Neb., 2 law school’s motion and granted the applicants’ motion, F. Supp. 2d 1223 (D. Neb. 1998). Former student claimed thereby certifying them as a class. the dismissal process used to dismiss her from the program violated her due process rights and discriminated against Financial Aid & Student Loans her on the basis of her disability. The court granted the University’s motion for summary judgment finding no Thornton v. Harvard Univ., 2 F. Supp. 2d 89 (D. substantive or procedural due process violation. As for the Mass. 1998). Law school graduate, who took a political disability discrimination claim, the court dismissed it be- reporter position with a foreign newspaper, applied for cause the student failed to inform anyone of her need for participation in the University’s “Low Income Protection accommodation. Plan” (LIPP). The University denied his request and he sued claiming various breach of contract and other equi- Bartlett v. New York State Bd. of Law Exam’rs, 2 table claims. The court dismissed the case finding the F.Supp. 2d 388 (S.D.N.Y. 1997). Bar examination appli- University had no contractual obligation to provide loan cant filed suit claiming the New York Bar had violated the assistance through the program and finding no merit in the Americans with Disabilities Act by denying the applicant’s graduate’s other claims. request to accommodate her learning disability during the exam. The court found for the applicant and the State Professor & Administrator Employment moved for reconsideration. In its reconsideration, the court re-emphasized its previous results finding the applicant did Discrimination meet the definition of disabled under the ADA and rejected the State’s use of another district court’s opinion as prece- Wesley v. Howard Univ., 3 F.Supp.2d 1 (D.D.C. dent. 1998). Doctor sued university and its hospital alleging various federal discrimination claims after the hospital Discrimination suspended the doctor for 14 days pending an investigation into some of her medical decisions. The court dismissed all Beasley v. Alabama State Univ., 3 F.Supp.2d 1304 of the federal claims either because the allegations failed to (M.D. Ala. 1998) and 3 F. Supp.2d 1325 (M.D. Ala. 1998). support the claim, or the statute of limitations barred the Both of these cases involve a former female student- claim. athlete’s Title IX discrimination claim. The first case simply holds that Title IX does properly abrogate an institution’s Eleventh Amendment immunity when an in- stitution accepts federal funds, either directly or indirectly. Vol. 41, No 5 School Law Reporter 113 Melling v. St. Francis College, 3 F.Supp.2d 267 qualified as plain error. Since the court held the lower (E.D.N.Y. 1998). College terminated physical education court’s mistake was not plain error, it upheld the dismissal. professor, who successfully sued the college, received both compensatory and punitive damage awards, as well as an Tout v. County of Erie, 2 F. Supp. 2d 320 (W.D.N.Y. order of reinstatement. The college asked the court to rule 1998). Former community college employee sued claiming in its favor as a matter of law, for a new trial, and/or to set- race discrimination and retaliation. College moved for aside the punitive damages. The court held the results were summary judgment and the court denied the motion. It held reasonably based on the facts and that it would be inappro- a genuine issue of material fact did exist on whether the priate to overturn the jury’s decision. The court did deny the reason given for the termination was pretext for race professor’s request for the reinstatement to include tenure. discrimination. Hines v. Ohio State Univ., 3 F.Supp.2d 859 (S.D. Ohio). Seventy-four year old medical school professor First Amendment Rights sued university claiming sex and age discrimination in its refusal to promote the professor and the University moved Free Speech for summary judgment. The court rejected the bulk of the motion finding the professor had presented sufficient evi- Hoover v. Morales, 1998 WL 977933 (5th Cir. (Tex.) dence of age discrimination, gender discrimination, and 1998). State of Texas and the Texas A & M system both retaliation for filing a claim. issued a policy prohibiting state employees from acting as expert witnesses or consultants in litigation brought against Hugley v. Art Inst. of Chicago, 3 F.Supp.2d 900 (N.D. the state. A group of faculty filed suit claiming the policies Ill. 1998). Former employee filed suit based on race dis- violated the First Amendment right to free speech, as crimination. Ruling in favor of the institution’s summary guaranteed through the Fourteenth Amendment. The lower judgment motion, the court held the employee had failed to court issued a preliminary injunction against enforcement adequately demonstrate that the reason the institution gave of the policy and the state appealed. The appellate court for termination was pretext for racial discrimination. held that just because a person is compensated for his or her speech does not suddenly classify the speech as commer- Dobbs-Weinstein v. Vanderbilt Univ., 1 F.Supp.2d cial, which receives less protection. In addition, because a 783 (M.D. Tenn. 1998). A professor, who was initially state employee acting as expert or consultant for the state in denied tenure, filed a discrimination suit claiming sex and litigation is protected, the policies differentiated based on race discrimination. While the court did hold the professor’s the content of the speech. As a result, the court found this claims were not moot even though she did eventually policy in clear violation of the First Amendment free receive tenure, the court dismissed the action. It held the speech right. professor failed to demonstrate either a sex-based wage discrimination claim, or that the reasons for the initial denial of tenure were pretext for discrimination. Miscellaneous Mission Group Kansas, Inc. v. Riley, 146 F.3d 775 Nonacademic Personnel Employment (10th Cir. 1998). A non-profit vocational school, which had shifted from for-profit status, filed suit seeking relief from Discrimination the Department of Education’s 85/15 rule. Under this rule, before the institution could receive Title IV financial aid Holmes v. Texas A & M Univ., 145 F.3d 681 (5th Cir. funds, it had to show that at least 15 percent of its revenue (Tex.) 1998). Former employee filed Americans with Dis- came from non-federal sources. The lower court held in the abilities Act claims against University. Lower court dis- institution’s favor and the Department of Education ap- missed as being filed untimely and employee appealed. The pealed. The appellate court reversed finding the lower court court first held the employee’s claim began to run when he applied the wrong standard. Since the Department’s inter- received the letter informing him of the termination, not the pretation was not in violation of the Constitution or federal actual date of termination. By applying the state’s two-year law, or arbitrary, capricious, or irrational, the appellate statute of limitation rule, the lower court dismissed the court held that the Department’s decision should be upheld. claim as untimely. While the appellate court held the general federal four-year limitation should have applied, the employee’s failure to raise that issue at the lower court only required the appellate court to determine if the mistake 114 School Law Reporter November 1998 TABLE OF CASES ELECTRONIC CITES UPDATE Gross v. Florida Corporation, 1998 WL 552801 (Fla. App. 4 Dist.) Bartlett v. New York State Board Peck v. Upshur County Board of Education, 1998 WL of Law Examiners / 112 559686 (4th Cir. (W. Va.)) Beasley v. Alabama State University / 112 Quinn v. Mississippi State University, 1998 WL 350912 Breen ex rel. Breen v. ST. Charles R-IV (Miss.) School District / 108 Borough of Palmyra Board of Education v. F. C. / 109 Dobbs-Weinstein v. Vanderbilt University / 113 Emberg v. University of Maryland University College Asian Division / 112 U.S. SUPREME COURT DOCKET Figuero v. Fajardo / 110 Gadsden City Board of Education v. B.P. / 108 Gibson v. Lee County School Board / 111 Gonzalez v. Puerto Rico Department ofEducation / 109 Summary of Court Action Reported From August 18, Gross v. Florida Corporation / 111 1998, Through September 22, 1998 Hines v. Ohio State University / 113 Holmes v. Texas A&M University / 113 Provided by Fred Hartmeister Hopwood v. State of Texas / 113 and Rebecca Hellbaum Hoover v. Morales / 113 Hugley v. Art Institute of Chicago / 113 CASES DECIDED Kanawah Countyu Board of Education / 110 King v. Floyd County Board of Education/ 111 None. Melling v. St. Francis College / 113 Mission Group Kansas, Inc. v. Riley / 113 Ms. M. ex rel. Y.O. v. New Britain CASES AWAITING DECISION AFTER ORAL Board of Education/ 108 ARGUMENT Quinn v. Mississippi State University / 107 Payne v. Twiggs County School District / 107 None. Phair v. Montgomery County Public School / 110 Pirschel v. Sorrell / 109 Reed v. Rhodes / 111 CASES SET FOR ORAL ARGUMENT Ronie Lee S. V. Mingo County Board of Education / 109 No. 96-1793. Cedar Rapids Comm. Sch. Dist. v. Rossomando v. Board of Regents of University of Garret F., 106 F.3d 822 [116 Educ. L. Rep. 78] (8th Cir. Nebraska / 112 1997). This case questions whether a school district is Sekor v. Capwell / 110 expected to provide continuous one-on-one nursing ser- Smith v. Univeristy of Washington Law School / 112 vices for a quadriplegic student under the IDEA. In a Thornton v. Harvard University / 112 preliminary ruling, an administrative law judge concluded Tout v. County of Erie / 113 that the required nursing services were “related” to the Wesley v. Howard University / 112 student’s special education needs rather than falling under Wood County Board of Education v. Smith / 110 the “medical services” exclusion within the IDEA; thus, the school district was required to reimburse the mother for costs she incurred for providing such services during the 1993-94 school year. Among other issues, the Court is asked to consider adoption of a “bright line” rule regarding the extensiveness of medical service exclusions under Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883 (1984), and to thus clear up an interpretive disparity between the Eighth Circuit Court of Appeals and the more restrictive approach followed in the Second, Sixth, and Ninth Circuits. On Vol. 41, No 5 School Law Reporter 115 October 6, 1997, the Court invited the Solicitor General to perform in an annual statewide competition. In a 7-6 split file a brief in the case expressing the views of the United decision, the Fourth Circuit Court of Appeals sitting en States. The Court granted the petition for certiorari on May banc affirmed the trial court’s holding that the plaintiff’s 18, 1998. The case has been set for oral argument on selection and production of “Independence” as part of the November 4, 1998. school’s curriculum was not protected speech under the First Amendment. The question presented to the Court is CERTIORARI GRANTED whether public school officials have absolute authority to discipline the teacher because of objections to ideas ex- None. pressed in the play, and regardless of whether the teacher had notice that the content might be considered improper. CASES RECENTLY FILED No. 97-1844. Bernofsky v. Tulane Univ. Sch. of No. 97-843. Davis v. Monroe County Bd. of Educ., Medicine, unpublished case (5th Cir. 1998). This is a civil 120 F.3d 1390 [120 Educ. L. Rep. 390] (11th Cir. 1997). rights case in which the plaintiff alleges harassment, retali- This case follows a parental complaint that a school princi- ation, and inappropriate discharge. The plaintiff is a 61- pal and three teachers failed to prevent an elementary year-old Jewish professor who was denied tenure some 20 school student from sexually harassing his female class- years after he was first employed. In granting the medical mate. The female student’s mother brought suit against the school’s motion for summary judgment, the trial court school board and two school officials under Title IX of the considered the fact that the professor was told that his Education Amendments of 1972 and 42 U.S.C. § 1983. employment and salary was contingent on his ability to Originally, the case was dismissed by the federal trial court generate external research grant funding. for failure to state a claim upon which relief could be granted. On appeal by the female student’s mother, a No. 97-1891. Babicz v. Boward County Sch. Bd., 135 divided three-judge panel of the Eleventh Circuit Court of F.3d 1420 [123 Educ. L. rep. 1133] (11th Cir. 1998). The Appeals reinstated the Title IX claim. At the school board’s parents in two sisters, both of whom are afflicted with request, the appellate court granted rehearing en banc to several chronic illnesses, attempted to sue the school dis- reconsider the Title IX claim and vacated the three-judge trict, its superintendent and principal under § 504 of the panel’s opinion. Sitting as a whole but with a series of Rehabilitation Act and the Americans with Disabilities Act concurring and dissenting opinions, the Eleventh Circuit (ADA). After concluding that the parents failed to exhaust affirmed the district court’s dismissal of the Title IX claim. their administrative remedies under the Individuals with The primary question before the Court is simply stated: Disabilities Education Act (IDEA), the trial court dis- Does Title IX’s prohibition against sexual discrimination missed the complaint without prejudice for lack of subject in federally funded education programs and activities en- matter jurisdiction. The Eleventh Circuit Court of Appeals compass a cause of action for peer hostile environment affirmed. The question presented to the Court is whether sexual harassment? The Solicitor General for the United students who are not entitled to special education under States has been invited by the Court to submit a brief in the IDEA must nonetheless exhaust their administrative rem- case. edies under that act prior to bringing claims under the ADA or § 504 of the Rehabilitation Act. No. 97-1830. Metropolitan Gov’t of Nashville and Davidson County v. Doe, 133 F.3d 384 [123 Educ. L. Rep. No. 97-1893. Student Loan Fund of Idaho Inc., v. 37] (6th Cir. 1998). A local education agency’s child find Duerner, 951 P.2d 1272 [124 Educ. L. Rep. 413] (Idaho plan is collaterally challenged in this case under the Indi- 1998). Student loan debt collection practices under the Fair viduals with Disabilities Education Act (IDEA). The case Debt Collection Practices Act is the primary issue in this arose after an administrative law judge ruled that the case. As posed to the Court, petitioners ask: Is a private parents of a special education student were not entitled to nonprofit student loan guaranty agency following debt reimbursement for their expenses after they unilaterally collection activities mandated by the Higher Education Act placed their son at a private school in another state. subject to the Fair Debt Collections Practices Act, and which includes restrictions that directly conflict with the Higher Education Act and its implementing regulations? No. 97-1835. Boring v. Buncombe County Bd. of Educ., 136 F.3d 364 [124 Educ. L. Rep. 56] (4th Cir. 1998). No. 97-1906. Wade v. Victoria Col., unpublished case This is a First Amendment case in which a public high (5th Cir. 1998). This alleged retaliation case began when school teacher was disciplined by being transferred to a female employee reported that her male supervisor sexu- another school because of objections arising from her ally harassed her at work. She was unsuccessful in produc- choice of a certain play for an advanced acting class to ing sufficient evidence to substantiate her Title VII claim 116 School Law Reporter November 1998 that her resignation from employment was actually a con- of an employee’s medical benefits without prior notice or structive discharge and that there was a causal connection an opportunity to be heard, violate the requisite elements of between her report and her resignation. procedural due process. No. 97-1945. Benedict v. Eau Claire Pub. Sch., 139 No. 98-4. Arkansas Dep’t of Educ. v. Jacoby, 962 F.3d 901 (7th Cir. 1998). Among other allegations, this pro S.W.2d 773 (Ark. 1998). This Fair Labor Standards Act se employment case raises claims of discrimination based (FLSA) case raises questions about sovereign immunity on disability and age. The petitioner, a public school and the Commerce Clause. teacher who suffers from chronic physical problems which limit her ability to walk and climb stairs between classes, No. 98-25. Alexander v. Bowers, 498 S.E.2d 728 [125 asks the Court to consider whether she presented sufficient Educ. L. Rep. 1000] (Ga. 1998). The closure of a private evidence to support her claims under the Americans with school and the availability of a temporary restraining order Disabilities Act (ADA), the Age Discrimination in Em- to block the sale of school property are the focal points in ployment Act (ADEA), and for retaliation after she filed a the due process case. Specific questions include whether a complaint with the Equal Employment Opportunity Com- state court must provide notice and a meaningful hearing mission (EEOC). before enjoining a property owner from selling property. No. 97-2004. National Collegiate Athletic Ass’n v. No. 98-44. Gee v. Humphries, unpublished case (11th Law, 134 F.3d 1010 [123 Educ. L. Rep. 510] (first ruling Cir. 1998). The case involves allegations of retaliation for below), and 134 F.3d 1025 (second ruling below) (10th Cir. an assistant professor’s remarks to university students. The 1998). Both of these rulings derive from an antitrust case professor had said to black students in his class that black involving a salary cap imposed on certain entry-level students who do not make opportunities for themselves are college basketball coaches. sometimes referred to as having a “nigger mentality.” Following the comment, the professor was suspend and, No. 97-2014. Warner v. Independent Sch. Dist., 134 later, denied tenure. The lower courts concluded that the F.3d 1333 [123 Educ. L. Rep. 510] (8th Cir. 1998). The statement did not involve a matter of public concern and, Court is asked to ascertain whether the Eighth Circuit Court further, that the professor’s failure to avail himself of state of Appeals properly concluded that the petitioner parent in court review precluded him from raising a federal due this Individuals with Disabilities Education Act (IDEA) process claim. case was not a prevailing party and thus not entitled to attorneys’ fees. Early in the proceedings, a hearing officer No. 98-79. Sellers v. Manassas Sch. Bd., 141 F.3d in the case had ordered that certain amendments be made to 524 [125 Educ. L. Rep. 1078] (4th Cir. 1998). The the disabled student’s individualized education plan; none- availability of tort-based monetary damages under § 504 of theless, the hearing officer concluded that the school dis- the Rehabilitation Act, the Individuals with Disabilities trict had complied with the Act. Education Act (IDEA), and 42 U.S.C. § 1983 is the focal point of this appeal. Parents of a learning-disabled child No. 97-2021. Todd v. Rush County Sch., 133 F.3d 984 argued unsuccessfully in the lower courts that an improper [125 Educ. L. Rep. 18] (7th Cir. 1998). Relying heavily on diagnosis resulted in their son’s being denied a free appro- Vernonia Sch. Dist. 473 v. Acton, 515 U.S. 646 (1995), the priate public education for which monetary relief should lower courts upheld a school district’s implementation of now be available. random, suspicionless and unannounced urinalysis tests for drugs, alcohol and tobacco for all students involved in No. 98-84. National Col. Athletic Ass’n v. Smith, 139 extracurricular activities as well as those who drive to and F.3d 180 [125 Educ. L. Rep. 32] (3rd Cir. 1998) and No. 98- from school. In effect, the Court is asked to consider 107, Smith v. National Col. Athletic Ass’n, [same cita- whether the school district’s drug testing program should tion]. This antitrust and civil rights case raises questions be allowed to extend to extracurricular activities other than about the applicability of Title IX of the Education Amend- athletics and cheerleading. ments of 1972 to the National Collegiate Athletic Associa- tion (NCAA). A companion issue is the NCAA’s authority No. 97-2030. Philadelphia Sch. Dist. v. Sullivan, 139 to limit participation by graduate student athletes who F.3d 158 (3rd Cir. 1998). This is a workers’ compensation enroll at institutions other than the ones where they com- case involving a self-insured employer’s alleged delay in pleted their undergraduate degrees. making a payment pending a utilization review. In revers- ing the trial court’s judgment, the Third Circuit Court of No. 98-87. Martin v. Lamar, citation unavailable (6th Appeals concluded that provisions in Pennsylvania’s Work- Cir. 1998). This pro se due process case arose after a ers’ Compensation Act, which provide for the supersedeas disabled student was expelled from school for a year. Vol. 41, No 5 School Law Reporter 117 No. 98-101. McCaffrey v. Oona R.-S.-, 143 F.3d 473 No. 98-201. Koch v. James, unpublished case (3rd [126 Educ. L. Rep. 589] (9th Cir. 1998). This Title IX case Cir. 1998). This school district election case centers on involves allegations of sexual harassment of a sixth-grade reapportionment premised on various types of census data. female student by a student teacher and several male students during the 1992-93 school year. Specific ques- No. 98-256. Saltsman v. Campbell, unpublished case tions before the court include the availability of damages in (6th Cir. 1998). This case arose following the search of a a § 1983 challenge for personal liability resulting from the home during an investigation by social workers and law school officials’ alleged failure to prevent such harassment. enforcement officers. The home-schooling parent/plaintiff contends that her reliance on the advice of counsel, pro- No. 98-126. University of Illinois Bd. of Trustees v. vided via a telephone conversation and in which she was Doe, 138 F.3d 653 [124 Educ. L. Rep. 812] (7th Cir. 1998). urged to allow the search, does not turn what would have Following in a long line of similar cases, the alleged failure otherwise been a coerced entry into a voluntary and consen- by school officials to remedy alleged student-to-student sual search. sexual harassment highlights issues of 11th Amendment immunity and availability of relief under Title IX. The No. 98-277. Armstrong v. Philadelphia Sch. Dist., female student in the case attended a public high school citation unavailable (3rd Cir. 1998). This pro se case is affiliated with the University. The student and her parents brought by a teacher seeking reinstatement after he was allege that she was the victim of ongoing verbal and discharged from employment. Among other features in the physical sexual harassment perpetrated by a group of male case, the trial court restricted the plaintiff from filing students. Plaintiffs maintain that they complained to school additional documents in the case without prior permission officials on numerous occasions but that very little was from the court, and the plaintiff was cautioned that failure done to combat the harassment. to abide by this limitation might result in a contempt of court sanction. No. 98-129. Procopio v. University Sch. of Nova Southeastern Univ., citation unavailable (11th Cir. 1998). No. 98-284. Hawthorne v. University of West Florida, This pro se due process case arose following a student’s unpublished case (11th Cir. 1997). This pro se case follows expulsion. The petitioner, a private high school student, an employee’s termination and subsequent employment challenged numerous defendants by claiming that her ex- discrimination action. The employee contends that the pulsion was for reasons that were vague and ambiguous and lower courts erred in granting summary judgment to the that the actual reasons were subsequently falsified in her employer when neglect, newly discovered evidence, and records. fraud came into play after judgment was entered. Petitioner also raises a question as to how allegations of the ineffec- No. 98-154. Moore v. Johnson City Bd. of Educ., 134 tive assistance of paid counsel compares with court-ap- F.3d 781 [123 Educ. L. Rep. 487] (6th Cir. 1998). A second pointed counsel under the Sixth Amendment. grade teacher’s suspension generated questions of disabil- ity-related employment discrimination. The lower courts No. 98-318. Louisiana v. St. Tammany Parrish Sch. concluded that the teacher, who had previously received Bd., 142 F.3d 776 (5th Cir. 1998). Inter-agency budgetary positive performance evaluations, was properly prevented disputes and ultimate state liability for a local school from teaching after she was involved in an accident while board’s alleged violations under the Individuals with Dis- driving drunk, voluntarily admitted to a psychiatric facility abilities Education Act (IDEA) is the focal point in this for acknowledged drug use, and lost custody of her children special education case. The Fifth Circuit Court of Appeals after a psychologist determined that she was incapable of concluded that the trial court did not abuse its discretion caring for them. The fact that the school district superinten- when it held that the Louisiana Department of Education is dent filled a dual role as investigator and presiding officer responsible for the costs of a disabled child’s placement in at the teacher’s due process hearing did not result in a a private institution during the pendency of other proceed- violation of her Fourteenth Amendment rights to due pro- ings challenging the appropriateness of the placement cess. decision. Of note in the case is the fact that the state had declined to participate in earlier administrative proceed- No. 98-172. Bering Strait Sch. Dist. v. United States, ings although the local school district had asked that the 138 F.3d 1281 [125 Educ. L. Rep. 22] (9th Cir. 1998). state do so. In the questions before the Court, the state Applying the Indian Health Care Improvement Act, the contends that an administrative review panel’s decision in Ninth Circuit Court of Appeals concluded that a local the case did not create a contractual relationship between school district is not a “state,” and thus is not exempt for the the state and the parents which, by extension, imposes Act’s requirement that the federal government be reim- liability on the state for interim placement costs. bursed for health services provided without charge to Alaska Native employees of the school district. 118 School Law Reporter November 1998 No. 98-331. Shafer v. New York State Bd. of Regents, [Contributors’ note: The following cases marked with 663 N.Y.S.2d 359 (N.Y. App. Div. 1998). This due process an * were filed so recently that more information about the health care case evolved following allegations of profes- facts and issues on appeal was unavailable as we went to sional misconduct. The primary factual issue hinges on the press. Additional information will be forthcoming in a credibility of witness testimony during a disciplinary hear- future edition of the School Law Reporter.] ing. The disciplinary panel concluded that a nurse’s testi- mony that the physician in the case had not seen the patient * No. 98-391. Gee v. Florida, citation unavailable on the days he said he had and for which he sought payment (Fla. Dist. Ct. App. 1998). This retaliation and Eleventh was more credible than the testimony of the physician, his Amendment case followed a university professor’s re- assistant, and even the patient. For the most part, the marks to students. questions before the Court turn on Precedural aspects of the disciplinary proceeding and the reconfiguration of the * No. 98-405. Reno v. Bossier Parish Sch. Bd., 7 F. disciplinary panel after one of its original members died. Supp.2d 29 (D.D.C. 1998) and No. 98-406, Price v. Bossier Parish Sch. Bd. [same citation]. The fundamental question No. 98-376. Jackson v. Benson, 578 N.W.2d 602 in these cases is whether the implementation of a districting (Wis. 1998). This high profile case raises questions about plan for school board elections is retrogressive under the the Establishment Clause constitutionality of a Milwau- Voting Rights Act of 1965 kee-based voucher program authorized by state statute that provides public funds to private sectarian and nonsectarian * No. 98-410. Fister v. Minnesota New Country Sch., schools. The Supreme Court of Wisconsin concluded that citation unavailable (8th Cir. 1998). This is a First Amend- the financial aid voucher program does not conflict with ment pro se case arising from a student’s suspension from Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973). school. CERTIORARI DENIED None.
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