RECENT DEVELOPMENTS IN THE LAW-Primary and Secondary Education

Constitutional Claims and Civil Rights

Parents sued school district and city challenging constitutionality of school district's desegregation plan. Parents sued the school district and the city for taking race into account when determining a student's ability to transfer out of neighborhood school. held: For the school district and city. The court held that Massachusetts' Racial Imbalance Act which urged school districts to adopt voluntary plans to alleviate racial imbalance was not facially invalid. Moreover, the desegregation plan did not violate equal protection. Comfort ex rel. Neumyer v. Lynn Sch. Comm., 283 F. Supp. 2d 328 (D. Mass. 2003).

Parents sued school board and superintendent for violating child's free speech and free exercise rights. As part of a fundraising project for the school, parents purchased bricks inscribed with a Latin cross. The parents sued the school board and the superintendent when the bricks were removed from the school's "walkway of fame." held: For the school board in part and for the parents in part. The court dismissed the parents' claim that the removal of the bricks violated the Free Exercise Clause. However, the court refused to grant dismissal of the claims alleging a violation of free speech and violation of the Establishment Clause. Demmon v. Loudoun Co. Pub. Sch., 279 F. Supp. 2d 689 (E.D. Va 2003).

Board of Education appealed decision from Commission on Human Rights and Opportunities that Board discriminated against teacher. The board of education failed to promote an African American teacher to an available assistant principal position. The Commission on Human Rights and Opportunities found the Board had discriminated against the teacher on the basis of race, color, and age. held: For the Commission. The Connecticut Supreme Court upheld the lower court decision that the board of education had discriminated against the better qualified teacher. Bd. of Educ. of City of Norwalk v. Commn. on Human Rights & Opportunities, 832 A.2d 660 (Conn. 2003).

Student sued school, alleging violation of First Amendment right to free speech. A student refused to remove a T-shirt that called President Bush an international terrorist and was subsequently sent home. The student sued the school district alleging his right to free speech was violated. held: For the student. The school was not justified in prohibiting the student from expressing his views regarding President Bush and should not have been required to remove the shirt. However, the court qualified its holding, stating that, unless wearing the shirt led to substantial disruption within the school, the student was free to wear it. Barber ex rel. Barber v. Dearborn Pub. Sch., 286 F. Supp. 2d 847 (E.D. Mich. 2003).

Teacher sued city, police department, police chief, and police officers, alleging violations of his constitutional rights and state law tort claims. A fifteen-year-old special education student accused the teacher of sexual abuse. The police arrested the teacher and investigated the case. The court later dismissed the case. held: For the city, police department, police chief, and police officers. The police had probable cause for the arrest. Thus, they did not infringe on the teacher's constitutional rights. The police were not negligent, nor did they intentionally inflict emotional distress upon the teacher. Forest v. Pawtucket Police Dept., 290 F. Supp. 2d 215 (D.R.I. 2003).

Citizen sued school district, alleging a violation of his Fourth Amendment rights when he was searched on school premises. An anonymous parent called the school to report that a Hispanic male entered the campus with a concealed weapon. School officials and security approached and searched the man and found the concealed weapon. held: For the United States. The citizen had a lowered expectation of privacy once he entered the public school campus. The scope of the search was reasonable given the information about the location of the concealed weapon. U.S. v. Aguilera, 287 F. Supp. 2d 1204 (E.D. CaI. 2003).

Parents sued public school district, alleging random student drug and alcohol testing violated parental privacy rights. The school district adopted a policy authorizing suspicionless drug and alcohol testing of students who participated in extracurricular activities or who held school parking permits. Parents asserted their parental rights were violated because the test results were disclosed to others and the mandatory counseling infringed on their fundamental right to make decisions involving their children's health care. held: For the parents in part and for the school district in part. The school district cannot adopt a policy of suspicionless searches. However, the issue was no longer valid since the students tested negative. Theodore v. Del Valley Sch. Dist., 836 A.2d 76 (Pa. 2003).

Students with Disabilities

School board sued administrative hearing officer claiming he favored parents' testimony over the school board's expert witnesses. When the local school board proposed a new individualized education program (IEP) to move an autistic child from a private school setting into an autism class in a public elementary school, the child's parents requested an administrative hearing to protest the change. After the hearing officer decided in favor of the parents, the school board filed a lawsuit alleging that the hearing officer did not give appropriate deference to the testimony of the school board's expert witnesses, two of whom had helped to develop the child's newly proposed 1ER held: For the school board. The court ruled that the hearing officer relied almost exclusively on the testimony provided by the parents' expert witnesses, neither of whom reviewed the educational progress of students already participating in the public school's autism classes. Also, the court held, the hearing officer substituted his own judgment in certain instances for the opinions of the school board's experts. Co. Sch. Bd. ofHenrico Co., Va. v. Palkovics, 285 F. Supp. 2d 701 (E.D. Va. 2003).

Student appealed court order adjudicating him as a person in need of supervision (PINS), claiming the ruling meant a proposed change in his individualized education program (IEP) as a disabled student. After the 16-year-old student was absent without a valid excuse for 16 school days in two months, the school's principal successfully sought a family court order declaring the student a person in need of supervision. A courtordered evaluation found that the student was emotionally disturbed and therefore disabled. Appealing that ruling, the student alleged that the decision violated the Individuals with Disabilities Education Act (IDEA) because it could mean a change in his 1ER held: For the school. The court ruled that no change in the student's 1ER was planned and that, in fact, the family court's order was critical in compelling the student to attend school so that he could take part in his 1ER In re Erich D., 767 N.Y.S.2d 488 (N.Y. App. Div. 2003).

Parents sued school board claiming administrative law judge (ALJ) did not adequately consider their expert's testimony and that the school erred in designing and administering their child's individualized education program (IEP). After the ALJ denied their request for private school tuition reimbursement and permanent private school placement for their disabled child, the parents appealed the decision alleging the judge failed to discuss a report produced by their expert who evaluated the child's condition. Also, the parents claimed that the school neglected to register the child's current performance levels in his IEPs and that the child's lack of progress in one 1ER component demonstrated the program's inadequacy. held: For the school board. The court ruled that, although the judge did not thoroughly discuss the parents' expert's report in her decision, a review of the record clearly showed that she considered it in rendering the decision. Further, the court declared that technical errors in 1ER documents did not result in the loss of educational opportunities because the child continued to make progress on almost every IEP objective during the time. Finally, the court said that the fact that the child did not improve in one IEP objective among eight to 17 different objectives from his third through fifth grade years did not deprive him of a free and appropriate public education. Christian Alexis v. Bd. of Education for Baltimore Co. Pub. Sch., 286 F. Supp. 2d 551 (D. Md. 2003).

Parents sued school system for private school tuition reimbursement after student left the public schools five days after his individualized education program (IEP) was developed. After the child attended private school for the seventh and eighth grades, a psychologist diagnosed him with a non-verbal learning disability. The parents contacted public school officials about re-enrolling their son and developing an appropriate IEP. Five days after an interim IEP was put in place, the parents transferred their son to a private school, rejected the IEP formally, and filed for reimbursement of the private school tuition. After an administrative law judge ruled against the parents, the district court agreed that the parents acted unreasonably in an attempt to force the public school system to pay for their child's private school education. held: For the public school. The court held that significant factual issues existed as to whether the parents were exploiting the school system or whether they were reacting to an "under-resourced" public school (e.g., whether the parents gave sufficient notice of their dissatisfaction with the child's IEP to public school officials). Loren F. v. Atlanta Indep. Sch. Sys., 349 F.3d 1309(1 lth Cir. 2003).

Student sued school district to recover attorney fees as a "prevailing plaintiff" under the fee-shifting provisions of the Individuals with Disabilities Education Act (IDEA). The student and his parents settled a lawsuit against the school district for certain expenses related to the student's private school placement, but the parties did not agree on the issue of attorney's fees. The district court found that the parents were entitled to recover attorney's fees, and the school district appealed that decision. held: For the student. The court ruled that, because the student was the "prevailing party" in the administrative due process hearing that preceded the district court's decision, the student was entitled to recover attorney's fees based on that victory. T.D. v. LaGrange Sch. Dist. No. 142, 349 F.3d 469 (7th Cir. 2003).

Student sued school district and state department of education claiming that they failed to develop an appropriate individualized education program (IEP) for him. The student's parents requested a due process hearing after the defendant district initially decided that the student, who had transferred from another public school district within the state, was not eligible for special education accommodations. The hearing panel ruled in the parents' favor, but the parents requested a second due process hearing claiming that the defendant district was not following the first panel's decision. The parents requested that the second panel approve private school tuition as compensatory damages, but the second panel decided that the district's IEP was adequate to compensate the student for the district's shortcomings. held: For the school district and state department of education. The court ruled that the IEP was adequate because it was developed in a timely manner, based on recent tests conducted on the student, and designed to address specific objectives with regards to the student's disabilities. Corey H. v. Cape Henlopen Sch. Dist. and the Dept. of Educ. of the State of Delaware, 286 F. Supp. 2d 380 (D. Del. 2003).

Parents sued state and Department of Education for failure to provide interpreter for deaf child. Parents of a deaf child brought suit under the Individuals with Disabilities Education Act (IDEA) and the Americans with Disabilities Act (ADA) when the school failed to provide their child with an interpreter. The state argued they were exempt from complying with federal law that makes discrimination based on disability unlawful. held: For the parents. The court held that by accepting federal education funding, the state was required to conform to the federal acts. Therefore, the state was required to provide an interpreter to meet their child's special needs. Nieves-Marquez v. Puerto Rico, 353 F.3d 108 (1st Cir. 2003).

Parents of deaf student sued school district for reimbursement of private school tuition. The parents of a deaf child were entitled to special education services under the Individuals with Disabilities Education Act (IDEA). After four years of public school, the parents were dissatisfied with the progress of their child. They placed their son in a private school before a due process hearing could be held to rule on the parents' request for private tuition reimbursement. held: For the school district. The court held the private placement was not proper as public school resources had not yet been exhausted. Moreover, the parents had failed to give adequate notice of their intention to withdraw their child from public school. Berger v. Medina City Sch. Dist., 348 F.3d 513 (6th Cir. 2003).

Torts

Student's parents sued school district, alleging emotional distress from student's sexual abuse. The teacher began a sexual relationship with a tenth-grade student. After the student's eleventh-grade year, the parents discovered the relationship and the teacher went to jail. held: For the school district. There was no evidence that any other teacher or school official had any knowledge of the relationship. In addition, the school district had no absolute duty to prevent the abuse. Thus, it is not liable to the parents for the emotional distress that resulted. Steven F. v. Anaheim Union High Sch. Dist., 6 CaI. Rptr. 3d 105 (CaI. App. 2004).

State sued teacher and school administrator, alleging sexual assault. The teacher engaged in a sexual relationship with an eighth-grade student for over three years. During this time, the teacher threatened the student, forcing her to conceal the relationship. The teacher had also engaged in sexual relationships with previous students. held: For the state. The court was allowed to exclude evidence of later consensual acts in a rape case involving a minor. The court was allowed to include evidence regarding past incidents with minor students. Thus, the trial was fair and the teacher was liable for the sexual assault. State v. Parsons, 589 S.E.2d 226, (W. Va. 2003).

Commissioner of the Department of Social Services found teacher physically abused a student. While reprimanding a student outside a classroom, a teacher forcibly grabbed the student and pushed him into a chair. The incident resulted in bruising and abrasions to the student. held: For the agency. The injury inflicted was not an accident. Therefore, it constituted abuse for which the teacher was liable. Mulvey v. Jones, 587 S.E.2d 728 (Va. App. 2003).

Student's mother sued school board, alleging school was responsible for student's sexual assault. A teacher allowed a kindergarten student to leave class and make an unsupervised visit to the restroom with three other kindergarten students. While in the restroom, the three other students sexually assaulted the student. held: For the mother. The school was able to foresee a possible attack on one student by other students if not provided with reasonable supervision. Thus, it was liable for the consequences of the attack. Katz v. St. John Baptist Parish Sch. Bd., 860 So.2d 98(La. App. 2003).

Grandmother sued superintendent school committee for injuries sustained by her grandson, allegedly as a result of poor air conditions at his school. A student, who attended the same elementary school for several years, developed health problems that seemed to be connected with his elementary school's air conditioning system. The school eventually closed due to the poor air-quality and the grandmother subsequently filed a claim against the superintendent school committee for her grandson's health problems. The school committee argued that its disclosure of its finding on the air conditions to be sub-par put the grandmother on notice to file the claim. held: For the grandmother. The court held that the committee did not show the grandmother lacked knowledge of the air conditions prior to the school's disclosure to parents and guardians of children. Patricia Mclaughlan v. Superintending Sch. Comm. of Lincolnville, 832 A.2d 782 (Me. 2003).

Student sued school board and city for injuries sustained from being stabbed outside of school. A high school student was stabbed by a peer while he waited for his first class on the school campus outside the school building. The student that stabbed him had a history of being violent and terrorizing students. The injured student claimed that his school had a duty to protect its students from foreseeable dangerous situations. The school argued that they were immune from liability for the stabbing. held: For the student. The court found that there was a question as to the foreseeability of the stabbing and, as such, the question of whether the school had a duty to protect the student was one for a jury. Shameek Speight v. N.Y.C., et al, 765 N.Y.2d 28 (N.Y. App. Div. 2003).

Physical therapist sued school district for back injuries that the therapist suffered while assisting a student off a school bus. The physical therapist, who had a contract with the school district, sued the school district for negligence after she sustained a back injury while assisting a student off a school bus. held: For school district. The court held that the school district did not have a duty to provide the school bus with a wheel chair lift and that there were no special circumstances which would have ereated a duty on the part of the school district to prevent the therapist from assisting the student off the school bus. As such, the school district could not be found liable for the physical therapist's injuries. Daleiden v. Jefferson Co. Joint Sch. Dist. No. 251, 80 P.3d 1067 (Idaho 2003).

Student's parents sued school district on theory that the school district created an unreasonable danger. The student was stabbed to death by a fellow student in a gang-related fight on school grounds. held: For the school district. The Court found there was a lack of evidence of the school board's knowledge of the alleged custom of tolerating gang activity. As such, the school district was precluded from liability. Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244 (5th Cir. 2003).

Student sued school district, alleging district was responsible for injuries sustained from its failure to properly supervise students. A first grade student was hit by a car and seriously injured on an adjacent street following school. held: For school district. The court found the school district was immune from liability as a matter of law. Moreover, the court held that the school district's written policies were not undertakings that provided exceptions to the statutes providing immunity. Guerrero v. South Bay Union Sch. Dist., 1 CaI. Rptr. 3d 509 (CaI. App. 2003).

Special education teachers sued school district after they were injured by handicapped student. A special education teacher and her assistant were violently attacked by an autistic child with a history of aggressive behavior. The teachers sued the school district alleging the district had knowledge of the child's violent history but disregarded that knowledge. held: For the school district. The school district took reasonable steps to alleviate any risk posed by the student. Vallandigham v. Clover Park Sch. Dist., 79 P.3d 18 (Wash. App. 2003).

Harassment

Teacher sued both co-worker for creating a sexually and racially hostile work environment and school district for willfully negligent hiring and retention and aiding and abetting in discrimination. The teacher alleged that a co-worker sexually harassed her and that the school board did nothing to stop the harassment. held: For teacher in part and for the school district in part. The court found there were genuine issues of material fact to go to the jury as to whether the co-worker created a sexually and racially hostile work environment. Moreover, the court found the school district did not violate the teacher's rights, absent evidence that the school district had policy or custom of maintaining or being deliberately indifferent to a hostile work environment. Sullivan v. Newburgh Enlarged Sch. Dist., 281 F. Supp. 2d 689 (S.D.N.Y. 2003).

Faculty & Teachers-Employment & Dismissal

Teacher sued principal, alleging violation of free speech and due process rights, and tort claims. The teacher spoke to parents and the local school council concerning the principal's request for an early renewal of his contract and issues regarding the kindergarten program. The teacher was charged with violations of the employee discipline code. The teacher alleged she was constructively discharged by the principal's harassment and retaliatory acts. held: For the teacher. The principal was acting outside his official duties. Thus, he is liable for infringing on the teacher's right to free speech, due process rights, and for defamation and infliction of emotional distress. Lipton v. Bd. ofEduc. of the City of Chicago, 290 F. Supp. 2d 940, (N.D. 111. 2003).

School district appealed decision of state agency that allowed teachers to wear union buttons during school hours. The teachers were involved in a contract dispute with the local school district and wore buttons referring to their opinion of teacher salaries. The school district stated that, under a local rule, the buttons constituted impermissible political activity. held: For the school district. The court found that school districts should not have to subject their students to the political opinions of the teachers. Thus, the school district was free to prohibit educators from this kind of political speech in the classroom. Turlock Jt. Elementary Sch. Dist. v. Pub. Empl. ReL Bd., 5 CaI. Reptr. 3d 308 (CaI. App. 2003).

Teacher appealed decision of school board, which dismissed her for being absent without leave. After being assaulted by a student, the teacher collected temporary total disability compensation. She was dismissed when the approved leave expired, even though she was not fit to return to work and was still collecting workers' compensation. held: For the teacher. The court determined state public policy prevented a teacher, or any other employee, from being terminated on the basis of collection of workers' compensation. Therefore, the school board had not shown just cause in her dismissal. Coolidge v. Riverdale Loc. Sch. Dist., 797 N.E.2d 61 (Ohio 2003).

Public school teacher sued school board, alleging it violated the Family Medical Leave Act (FMLA) and state employment discrimination law. The teacher had leukemia and requested excusai from teaching her firstperiod class. She resigned when her request was denied. held: For the teacher in part and for the school district in part. The school board violated the FMLA when it failed to give the teacher notice of her rights. However, the issues of whether the board violated the Act by not providing leave and whether it made a good-faith effort to reasonably accommodate the teacher's disability still need to be decided. DeCesare v. Niles City Sch. Dist. Bd. ofEduc., 798 N.E.2d 655 (Ohio App. 2003).

Teacher appealed revocation of his teaching certificate for improperly touching students. A teacher was charged and acquitted of improperly touching some of his students. However, the teacher's teaching certificate was revoked by a Commission of the Department of Education for immorality and intemperance. held: For the Department of Education. The Commission was the ultimate judge of whether the teacher's license should be revoked and the evidence supported the revocation. Boguslawski v. Dept. ofEduc., 837 A.2d 614 (Pa. Cmmw. 2003).

Dismissed teacher sued school board alleging her dismissal was retaliation for protected speech. A school board fired a teacher for insubordination and incompetence in his teaching. The teacher alleged that his firing was actually retaliation for disputes he had had with supervisors over teaching philosophy and methodology. held: For the school board. There was substantial evidence that the teacher was fired due to his inadequate performance rather than retaliation. Roemer v. Bd. of Educ. of Sch. Dist. ofN.Y., 290 F. Supp. 2d 329 (E.D.N.Y. 2003).

Other Employees-Employment & Dismissal

Principal sued school district for reinstatement. A principal was terminated after being accused of stealing school funds. The principal sued the school for reinstatement and damages. held: For the school district. The court did not allow reinstatement because of technical error. Also, the court did not grant damages because the principal did not mitigate loss. Larry v. Grady Sch. Dist., 119 S.W.3d 528 (Ark. App. 2003).

Coach appealed decision of school board, which dismissed him on grounds of moral turpitude. The coach, a physical education teacher, threatened to beat up the superintendent after he told him he would write him up if the coach did not leave the copy room. Soon after this incident, the school dismissed the coach on moral turpitude grounds. held: For the coach. The court found that while his words were unprofessional, he did not take any action that produced possibility of imminent harm to the superintendent. Bollard v. Indep. Sch. Dist. No. 4 ofBryan Co., 77 P.3d 1084 (OkIa. 2003).

Student Conduct & Discipline

A mother sued high school principal for an alleged caning of her child that occurred during a disciplinary meeting in his office. A mother of a student sued the board of education and the principal of her son's high school after he was struck repeatedly by the principle with a metal cane. The high school student was hit on the back neck and head during his visit to the principal's office. The principal argued that he was immune from legal claims of this nature. held: For the student and his mother. The court decided that because of the severity of the beatings, the principal was not entitled to qualified immunity. Coretta Kirkland v. Greene Co. Bd. ofEduc., 347 F.3d 903 (llth Cir. 2003).

Middle school filed criminal charges against student for violation of state criminal law. The student wrote "bomb" on the school wall during school hours and was charged criminally for his destructive behavior. The criminal law made conduct that disrupts public schools and colleges criminal. held: For the student. The court explained that, because the disturbance was not on a level worthy of criminal culpability and because the writing was not interpreted as an actual bomb threat, the student should not be held in violation of any law. In re Jason W. No 23, 837 A.2d 168, (Md. App. 2003).

Athletics

Wrestling coach sued Athletic Association and School District after he was suspended for rule violations. A student wrestler entered a tournament without complying with the Athletic Association's rules. The school suspended the coach without pay after learning of the rule violations. The Athletic Association then lifted sanctions against school wrestling program. held: For the Athletic Association in part and the coach in part. The Athletic Association was not the Coach's employer and therefore did not deprive him of liberty interest or vested property right by imposing sanctions. However, the coach could sue the school district on the question of whether suspending him without a hearing denied him his liberty interest in employment. Babi v. CoIo. High Sch. Activities Assn., 77 P.3d 916 (CoIo. App. 2003).

Miscellaneous Claims

Student sued city and board of education, alleging their negligence caused student's injuries. Student fell into an excavation area in a high school parking lot. held: For the student. The city and the board owed a duty to the student even if the hole were an open and obvious condition. Thus, both entities were liable for the injuries sustained when the student fell into the hole. Rexroad v. City of Springfield, 796 N.E.2d 1040 (111. 2003).

Teacher sued state to be released from having to register as a sex offender. Eleven years after the former teacher admitted sexual abuse of child, he sought to be released from sex offender registry. As support for this request, the teacher offered proof of his completion of a sex offender program and polygraph tests. held: For the state. The teacher must prove he is not a sex offender by clear and convincing evidence to be released from sex offender registry. he did not put forward enough proof to carry that burden. Idaho v. Knapp, 79 P.3d 740 (Idaho App. 2003).