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									                               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: ela@udayton.edu 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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