Education Law in the Courts

Education Law in the Courts - 2018
VSBA Annual Conference Williamsburg, Virginia November 15, 2018 Bradford A. King, Esq. Nicole S. Cheuk, Esq. (804) (804)

SPECIAL EDUCATION FIRST AMENDMENT/STUDENT RIGHTS EMPLOYMENT CASES SEXUAL HARASSMENT FINAL TAKEAWAYS

SPECIAL EDUCATION

T. B. v. Prince George’s County Board of Education, No
T.B. v. Prince George’s County Board of Education, No , (4th Cir. 2018) Issue: Whether failure to find student eligible for special education and related services denied him FAPE Holding: Court held that procedural violation did not actually deprive T.B. of FAPE Facts Grades declined drastically from 6th-10th grade In 10th grade – he failed every class but Algebra and had to repeat Increased absenteeism Parents requested eligibility in 9th grade – determined not eligible IEE found moderate ADHD, SLD, unspecified depressive disorder Transferred high schools for second year in 10th grade – attended first few days, then stopped coming to school

T.B. v. Prince George’s County Board of Education, No , (4th Cir. 2018) In January 2015, parents requested due process hearing for a denial of FAPE, compensatory services, reimbursement for IEE March 2015, determined eligible on basis of Emotional Disability; offered five fee-waived credit recovery courses April 2015 IEP team recommended specialized program, but student never attended Analysis Although hearing officer determined there was a procedural violation, court agreed with district court that it id not actually interfere with the provision of FAPE FAPE – must offer an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”

T.B. v. Prince George’s County Board of Education, No (4th Cir. 2018) T.B.’s parents had made and school division ignored requests for evaluations throughout T.B.’s ninth- and tenth-grade years, even after results of IEE Not to say that T.B. was neglected by school division Procedural violation must have had an adverse effect on education, caused substantive harm ALJ – the Student simply does not want to go to school Culmination of 67 factual findings - no type or amount of special education services would have helped T.B. achieve a FAPE T.B.’s teachers nearly unanimous in their conclusion that T.B. had no disability that special education would have remedied; he was simply unwilling to take his education seriously Overwhelming evidence that poor performance due to his failure to attend a “preposterous number of classes”

T.B. v. Prince George’s County Board of Education, No , (4th Cir. 2018) Key quotes from the opinion: “We determine independently whether the school district violated the IDEA but consider the ALJ’s factual findings to be ‘prima facie correct’” “The IDEA thus serves to set standards for the education of children with disabilities without displacing the traditional notion that primary responsibility for education belongs to state and local school boards, educators, parents, and students themselves” “Schools are not required to ‘designate every child who is having any academic difficulties as a special education student’” “The ALJ’s review here was anything but cursory. Indeed, he went out of his way to exhaustively determine whether there was any scenario in which special education would have been of any assistance to T.B. within the ambit of the IDEA” “T.B.’s problems were rooted in his refusal to go to class or attend school”

T.B. v. Prince George’s County Board of Education, No , (4th Cir. 2018) “Holding the school district liable for regrettable results in every case would simply deplete its resources without improving outcomes for anyone, a result Congress could not have intended” “[T]he record is devoid of any credible evidence that an unaddressed disability caused T.B.’s educational difficulties and replete with credible evidence that T.B. himself was the cause” “Poor motivation and poor performance do not always and invariably lie at the feet of teachers and schools. Students themselves also have to try”

Z. G. v. Pamlico County Public Schools Board of Education, No
Z.G. v. Pamlico County Public Schools Board of Education, No , (4th Cir. 2018) Issue: Exhaustion of remedies under IDEA, failure to provide FAPE, develop proper IEP, evaluate, provide appropriate instruction Holding: District Court properly dismissed these education-related claims because all subject to exhaustion requirement Facts: Kindergarten student enrolled mid-year from a public charter school Father informed principal that student experienced disciplinary and educational problems at school Conducted 504 evaluation, despite teacher reports and recommendations, no eligibility for special education services Spent most school days in the principal’s office

Z.G. v. Pamlico County Public Schools Board of Education, No , (4th Cir. 2018) Next school year, principal called parents to pick up student early the first three days of school Third day, student in therapeutic hold after attempt to run into parking lot and harm himself Student committed involuntarily, held for two days without his parents’ consent Transported to another hospital for evaluation, diagnosed Z.G. with autism and informed parent that involuntary commitment was unnecessary Parents subsequently submitted another referral form requesting special education services Developed 504 and IEP, not followed and Z.G. spent the remainder of his time at PCPS in a sensory choice room all day without interaction with other students

Z.G. v. Pamlico County Public Schools Board of Education, No , (4th Cir. 2018) Analysis To resolve disputes concerning a student’s right to a FAPE, IDEA establishes formal set of procedures that grant the right to file a federal civil action Prior to bringing suit, a plaintiff must* exhaust administrative remedies Did not here qualify for any of the three exceptions to requirement The ALJ is empowered to require services and modifications to address behavior violations that are manifestations of a disability The fact that the plaintiffs also seek damages does not free them from the obligation to exhaust administrative remedies Claims under Section 504 and ADA are also subject to requirement – as crux is challenge to adequacy of Z.G.’s educational experience

Endrew F. Case Update Case brought by parents who sought reimbursement for private school placement Issue of payment returned to lower court after Supreme Court decided educational standard issue Must offer individualized education plan that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” In February, lower court determined that school division was liable for tuition reimbursement, attorney’s fees, costs In June, Colorado school division settled the case for $1.32 million Underscores importance of the decision

FIRST AMENDMENT AND STUDENT RIGHTS

Barnes v. Liberty High School, Case No. 3:18-cv-00877-AC, (D. Ore
Barnes v. Liberty High School, Case No. 3:18-cv AC, (D. Ore. May 30 , 2018) 12th grade student wore shirt to class on the day that immigration was to be discussed, removed from class Argument: the school has shown a double standard by trying to censor the teenager while allowing one of Barnes’ teachers to prominently display a sign in front of a classroom reading, "Sanctuary City, Welcome Home“ Restriction on one side of the debate District Court awarded a temporary restraining order to Barnes for the rest of the school year “the shirt did not substantially disrupt or materially interfere with the work of the school or the rights of his fellow students” and “at the core of what the First Amendment is trying to protect” District settled with student for $25,000

Barnes v. Liberty High School, Case No. 3:18-cv-00877-AC, (D. Ore
Barnes v. Liberty High School, Case No. 3:18-cv AC, (D. Ore. May 30 , 2018) Notable quotes from Complaint: “vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools…The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection” (Tinker v. Des Moines) “The shirt did not promote or advocate illegal activity; it contained no violent or offensive imagery; nothing on it was obscene, vulgar, or profane. Through his shirt, Barnes sought to comment on a national debate about a serious political and societal issue” “Public school students ‘may not be confined to the expression of those sentiments that are officially approved’” (Tinker v. Des Moines)

V. A. v. San Pasqual Valley Unified Sch. Dist. , US Dist
V.A. v. San Pasqual Valley Unified Sch. Dist., US Dist. LEXIS (S.D. Cal. Dec. 21, 2017) High school football player granted preliminary injunction to silently kneel during the playing of the National Anthem to protest racial injustice Governed by Tinker standard (must be reasonably foreseen as causing substantial disruption in order to restrict speech) Incident occurred hours after an away game in which he knelt, but water thrown on him and racial slurs made to him did not amount to substantial disruption such that his expression could be prohibited Memo issued to coaches requiring players and coaches to stand during National Anthem Eventually superintendent recommended that National Anthem not be played at last football game of season

A Word On: Gender-Based Harassment
From Office for Civil Rights’ website: All students can experience sex-based harassment, including male and female students, LGBT students, students with disabilities, and students of different races, national origins, and ages. Title IX protects all students from sex-based harassment, regardless of the sex of the parties, including when they are members of the same sex Examples of Policies and Emerging Practices for Supporting Transgender Students:

Gloucester Case Status
August 2, 2017 – Fourth Circuit cancels oral argument and remands to district court to consider whether the suit should be dismissed because it is moot August 11, 2017, ACLU filed an amended complaint in lawsuit to reverse school district’s policy, which prohibited transgender students from using restrooms consistent with their gender identity. Because of Grimm's graduation, the ACLU amended the complaint in his suit to seek damages and to overturn the school board's "anti-trans policy permanently“ September 22, 2017 Gloucester moved to dismiss – reiterating earlier arguments, saying the policy did not violate constitutional rights or discriminate against him because all students treated the same. Policy requires students to use restrooms or locker facilities that match their biological sex or three private, single stall bathrooms May 22, 2018 – School Board Motion DENIED by USDC of EDVA

Doe v. Boyertown Area School District, No. 17-3113 (3rd Cir
Doe v. Boyertown Area School District, No (3rd Cir. May 24, 2018) Issue: Male student challenging the school district’s policy of allowing transgender students access to sex specific school facilities on the basis of gender identity Holding: Preliminary injunction denied Facts: Student exposed involuntarily to transgender student in locker room Violation of right to privacy under 14th Amendment , violation of Title IX and invasion of privacy Analysis: Failed to show they were likely to succeed on the merits or that they would be irreparably harmed if the policy remained in place The challenged policy is narrowly tailored to serve a compelling interest

Other transgender-student related litigation
Menefee v. City of Huntsville Bd. of Educ., No (N.D. Ala. Filed Sept. 12, 2018) former student alleges she was harassed and physically assaulted because she was transgender, while administrators let it happen seeks a jury trial on allegations that the school suppressed First Amendment rights, violated Title IX anti-discrimination guarantees, and failed to supervise and train school staff. Doe v. Volusia Cnty. Sch. Bd., No (M.D. Fla. Jan. 19, 2018) Transgender high school student, alleged that VCSB’s discriminatory policies of denying Doe access to the boy’s restroom and locker room based on gender identity violate his Title IX and 14th Amendment equal protection rights Settlement approved in Sept. – ensuring the student’s unfettered access to the boys’ restrooms and locker room at school

J.A.W. v. Evansville Vanderburgh Sch. Corp., No (S.D. Ind. Filed Feb. 22, 2018) August 3, 2018 – District Court issues preliminary injunction ordering EVSC to allow student to use the boys’ restroom – student had shown a reasonable likelihood of success on the merits of his Title IX and Equal Protection Clause claims, no adequate remedy at law, denial of injunction would result in irreparable harm to him, and the balance of harms weighed in J.A.W.’s favor Reynolds v. Talberg, No (W.D. Mich. Filed Jan. 19, 2018) Parents and students filed suit challenging WCSD’s policy accommodating transgender students’ use of school facilities on the basis of gender identity

PJI v. Sutherlin School District (Douglas Cnty., Cir. Ct. Filed May 21, 2018) Student and parent drop suit against Oregon district challenging its decision to allow transgender students to use restrooms on the basis of gender identity Kenosha Unified Sch. Dist. Bd. of Educ. V. Whitaker, No (U.S. pet. for cert. filed Aug. 28, 2017) – School division filed a petition for certiorari with U.S. Supreme Court asking it to review the 7th Circuit decision upholding district court’s preliminary injunction allowing transgender student access to the boys’ bathroom based on gender identity January 10, 2018: board settles suit for $800,000 – the board will allow him access to the boys’ bathroom as an alumni – however agreement only applies to Whitaker and no other transgender student; petition to U.S. Supreme Court – withdrawn

EMPLOYMENT

Virginia Attorney General’s Opinion – August 28, 2018
Issue: Whether the Department of Criminal Justice Services (DCJS) may issue a valid temporary registration or valid registration to one or more public school teachers, or other school personnel, as special conservators of the peace (SCOPs) Background: Lee County School Board voted to request the Lee County Circuit Court to appoint public school teachers and other staff members as SCOPs DCJS cannot issue registration to a SCOP applicant to possess firearms on school property Virginia law authorizes SROs and certain school security officers to possess firearms on public school grounds, but not teachers and administrators

United States of America v. Allegan Area Educational Service Agency, (W.D. Mich. August 15, 2018)
Brought to enforce Title VII of the Civil Rights Act - sexual harassment Quid pro quo Hostile work environment In 2016, EEOC received charges of discrimination from two teachers alleging that the male principal subjected them to sexual harassment (verbal, physical) Investigated and found reasonable cause to believe teachers were subjected to unlawful sexual harassment because of their sex Charges referred to DOJ after unsuccessful attempts to resolve each charge

United States of America v. Allegan Area Educational Service Agency (W
United States of America v. Allegan Area Educational Service Agency (W.D. Mich. Filed August 15, 2018) Principal was the direct supervisor of both teachers, had the authority to effect significant change in their employment through hiring, firing, evaluations, letters of recommendation, and staff and student assignments in their classrooms He threatened each teacher not to report his actions – or jobs, evaluations, resources, placements would be in jeopardy Offered job benefits in exchange for cooperation Principal was arrested, charged and convicted of sexual assault – he is now in prison

United States of America v. Allegan Area Educational Service Agency (W.D. Mich. Filed August 15, 2018) School Division’s Prior Knowledge: 2014 complaints by two women, therefore knew or had reason to believe that female employees perceived principal’s actions as abusive Determined in 2014 that there had been a significant exodus of female staff members leaving because of principal’s inappropriate conduct with women Did not take appropriate remedial action In October 2015, teachers complained to Director of Specialized Instruction (who knew of 2014 complaints), no action taken

United States of America v. Allegan Area Educational Service Agency (W.D. Mich. Filed August 15, 2018) Prayer for Relief: Develop and implement appropriate and effective measures to prevent and correct harassment including policies and training Develop and implement appropriate and effective complaint/investigation process Compensatory damages for injuries, pain and suffering caused by discriminatory conduct Additional equitable relief Jury demand

Knox v. Union Twp. Bd. of Educ. , 2015 U. S. Dist. LEXIS 21536, (D. N
Knox v. Union Twp. Bd. of Educ., 2015 U.S. Dist. LEXIS 21536, (D.N.J. 2015) Facebook Posts: “I DO NOT HAVE TO TOLERATE ANYTHING OTHERS WISH TO DO. I DO HAVE TO LOVE AND SPEAK AND DO WHAT’S RIGHT” Called homosexuality a “perverted spirit” and a “sin” that “breeds like cancers” Suspended without pay in December 2011, six months later she resigned, filed suit in federal court in 2013 (First Amendment, establishment claims) Motion to dismiss denied in 2015 Department of Education attempted to revoke her teaching certificate Settlement - $132,500, including $24,500 in back wages, money for emotional distress and attorney’s fees

McMillan v. Cumberland County Board of Education, No. 16-2249 (4th Cir
McMillan v. Cumberland County Board of Education, No (4th Cir. April 4, 2018) Issue: Whether teacher was denied federal due process in her termination Had invited a student to live with her to avoid a bad situation at home Student had hidden drugs at school (ended up being expired and belonged to McMillan’s deceased child) Administrative conference, she was given a chance to give her account, superintendent summarized his understanding, and McMillan explained her position Days later, informed her she would be dismissed or she could agree to resign Resigned following an investigation into her conduct

McMillan v. Cumberland County Board of Education, No (4th Cir. April 4, 2018) Analysis: Constitutionally protected liberty interest in her employment= entitlement to minimum procedural standards required by de process “a tenured government employee is entitled to: [1] oral or written notice of the charges against [her], [2] an explanation of the employer’s evidence, and [3] an opportunity to present [her] side of the story.” McMillan stated in her deposition that principal told her he had a parent upset that she had asked her son to retrieve medication, putting her son in jeopardy, this incident could cost McMillan her job (satisfies first two prongs)

McMillan v. Cumberland County Board of Education, No (4th Cir. April 4, 2018) Analysis cont’d: Court stated that “Federal due process only requires that the explanation of the charges be descriptive enough to ‘permit [the employee] to identify the conduct giving rise to the dismissal and thereby to enable him to make a response.’” Specification of the charges is not required If state law grants more procedural rights than the Constitution would otherwise require, state’s failure to abide by that law is not a federal due process issue Clear from her deposition that McMillan learned exactly what prompted the investigation and of what she was being accused, two opportunities to tell her side

SEXUAL HARASSMENT

Title IX Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (Title IX): “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance” U.S. Department of Education’s Office for Civil Rights (“OCR”) interprets this to include gender-based harassment Gender-based harassment includes verbal, non-verbal or physical aggression, intimidation, or hostility based on sex or sex stereotyping, including failing to conform to stereotypical notions of masculinity or femininity

Title IX – Sexual Assault/Harassment
When a school division knows or reasonably should know of possible harassment, it must take immediate and appropriate steps to investigate or otherwise determine what occurred If an investigation reveals that the harassment created a hostile environment, the school division must then take prompt and effective steps reasonably calculated to: End the harassment; Eliminate the hostile environment; Prevent its reoccurrence; and As appropriate, remedy its effect

Russell County School Division: A Cautionary Tale
Doe v. Russell County School Board, 2017 U.S. Dist. LEXIS (W.D.Va. April 13, 2017) (motion to dismiss) Employee-on-student sexual harassment Facts: Gobble employed as a janitor from , arrested February 12, 2014 – confessed to serial sexual abuse of four boys Henley, principal of Lebanon Elementary School, allegedly knew that Gobble had Doe living with him and took him on weekend trips – failed to investigate and did not take any action Hooker, principal of LES during Doe's 4th grade year, knew Gobble spent substantial sums of money on and time with Doe, during and outside school hours Hooker sat in on DSS interviews of Gobble and Doe in which they denied that anything had happened between them Hooker did not independently investigate the complaint and took no other action Various teachers and other school board employees witnessed Gobble acting inappropriately toward Doe and other male students

Doe v. Russell County School Board
Plaintiff alleges that the School Defendants allowed Gobble to have unsupervised and unrestricted access to LES, including its most isolated areas, at all times of the day and year; allowed Gobble to have unrestricted access to LES students Opinion references USDOE, OCR and Virginia Board of Education and their repeated notifications to schools of the problems of sexual assault – recommended training, etc. Complaint alleges that the School Defendants failed to heed warnings and did not provide the required and recommended training for teachers, administrators, staff, students, or parents Defendants moved to dismiss because the allegations do not show that the School Board had actual knowledge that Gobble was abusing Doe, facts known by Gobble and Hooker did not create actual knowledge

To establish a claim – Plaintiff must show that: (1) He was a student at an educational institution receiving federal funds; (2) He was subjected to harassment based on his sex; (3) The harassment was sufficiently severe or pervasive to create a hostile or abusive environment in an educational program or activity; and (4) There is a basis for imputing liability to the institution Supreme Court has held that a school district is not liable for damages based on sexual harassment of a student by a teacher "unless an official of the school district who at a minimum has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher's misconduct."

Majority of circuits have concluded that principals have sufficient authority to impute liability to their school boards Count I against principal allowed to go forward Count II against school board allowed to go forward Count III is a "failure to train" claim asserted against School Defendants under §1983, allowed to go forward because: In school context, the failure to train must amount to deliberate indifference to the rights of students, and the deficiency in training "must be closely related to the ultimate injury." Court concluded that the Plaintiff plausibly asserted that the School Defendants' failure to train teachers and employees on how to spot, investigate, and address sexual assault amounted to deliberate indifference

Summary Judgement Decision – February 13, 2018
Summary judgement denied as to School Board Reasonable jurors could conclude that principal’s response to the DSS investigation was clearly unreasonable in light of the known circumstances and that inaction allowed abuse to continue for months longer than it might otherwise have occurred Through the DSS investigation, Principal learned that Doe, a particularly vulnerable elementary school student, was living in the same bedroom with a school employee to which he was unrelated Principal also knew that Doe was regularly spending time with Gobble at school behind closed doors Court cited 2011 DCL, in deciding that reasonable jurors could conclude that School Board failed to take corrective action after Gobble’s confession and arrest Although Doe left for a time, he ultimately returned and is a student there now Failed to offer counseling or other remedial measures Failed to take action necessary to prevent future harassment, such as training or disciplining personnel, or revising applicable policies Following denial, settlement reached for $1.1 million

Other litigation headlines
Male student accused of sexual misconduct files suit against Virginia district alleging gender discrimination (October 18, 2018) Sixth Circuit panel rules that where credibility is at issue in a student disciplinary hearing involving the accusation of sexual assault the accused has a due process and Title IX right to cross-examine the accuser and adverse witnesses

Questions? Thank you for your time!
Bradford A. King, Esq. – (804) Nicole S. Cheuk, Esq. – (804)

Education Law in the Courts

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