Supreme Court sides with STRS that instructors at a virtual learning academy were not "teachers" under Ohio law

In a split 4-3 decision, the Supreme Court of Ohio has sided with the State Teachers Retirement System that instructors at a "virtual learning academy", or VLA, are not teachers eligible to participate in STRS. A VLA is an "internet-based educational delivery system designed for K-12 students." In the case, Jefferson County Educational Service Center had partnered with an online school to provide education to public school students. The ESC withheld contributions from those teachers to pay STRS. However, STRS returned the money, stating that in its judgment, the instructors were not teachers within the meaning of the Ohio Rev. Code. Ultimately, the Supreme Court agreed.

Court clarifies standard for student cell phone search

In a case applicable to Ohio, the Sixth Circuit Court of Appeals has ruled that school officials search of text messages on a student's cellphone was unreasonable and violated the student's rights under the Fourth Amendment. The case involved a student who had been seen by a teacher texting in class, a violation of school rules. The teacher turned the phone over to an assistant principal, who read the student's text messages on the phone. The assistant principal later testified that she knew of the student's prior discipline issues and was looking "to see if there was an issue with which I could help him so that he would not do something harmful to himself or someone else." The school, then, expelled the student, considering the cell phone violation the student's final chance in a series of disciplinary violations. The student and his family then sued the school in federal court, alleging, among other claims, a violation of the 4th Amendment. Relying on the 1985 Supreme Court case New Jersey v. T.L.O., the appeals court said "[a] search is justified at its inception if there is reasonable suspicion that a search will uncover evidence of further wrongdoing or of injury to the student or another." "Not all infractions involving cellphones will present such indications. Moreover, even assuming that a search of the phone were justified, the scope of the search must be tailored to the nature of the infraction and must be related to the objectives of the search." Further, "[u]nder our two-part test, using a cellphone on school grounds does not automatically trigger an essentially unlimited right enabling a school official to search any content stored on the phone that is not related either substantively or temporally to the infraction," the court held. "We disagree...that general background knowledge of drug abuse or depressive tendencies, without more, enables a school official to search a student's cell phone when a search would otherwise be unwarranted," Accordingly, going forward, it is unlikely that a student caught using his phone in class, without more, can legally have his phone searched by school officials.

School district not liable for sexual abuse, court of appeals rules

In a case decided this week out of Columbus, the Sixth Circuit Court of Appeals refused to find a school district liable for the molestation of a child by a teacher, even though the teacher had previously been reprimanded for unwanted touchings. The allegations involved a fourth-grade teacher employed by Columbus City Schools. The teacher had been reprimanded consistently over the year for what amounted to more and more aggressive unwanted touchings of students, though the touchings were arguably of a non-sexual nature. In several of the instances, the teacher was reprimanded by the school district. Finally, in the spring of 2005, a student at the school reported that both she and the plaintiff of the present case, John Doe, had been touched by the teacher. The student asserted that the teacher had touched Doe on at least five occasions in the classroom. The teacher summoned the plaintiff to review his work and, in doing so, planted his hand down the plaintiff's pants and fondled his genitals. The student did not return to the school after these accusations were made. An investigation by law enforcement and child services revealed that other students had been victims of the teacher. This led to a fifteen-count indictment against the teacher for gross sexual imposition in violation of section 2907.05 of the Ohio Revised Code. The teacher entered an Alford plea for two counts 1 and was sentenced to ten years’ incarceration, surrendering his teacher’s license in the process. The student sued the Columbus City Schools’ Board of Education, the School District, the superintendent, the school principal, and the teacher, alleging violations of substantive due process, Title IX, and related state tort law claims. Analyzing these claims, the court found that the parents proved to meet the deliberate indifference burden. Deliberate indifference arises when “school officials are aware of the misconduct but do nothing to stop it, despite [the school district’s] ability to exercise control over the situation.” Horner v. Ky. High Sch. Athletic Assn., 206 F.3d 685, 692 (6th Cir. 2000). Because "the nature and severity of [the teacher's] misconduct was not ... apparent to school officials" from the previous touchings that were not sexual in nature, there was not liability on the Board of Education, the school district, the superintendent, or the school principal.

Court affirms firing of administrator for writing op-ed piece

The U.S. Sixth Circuit Court of Appeals has affirmed the dismissal of a former administrator at the University of Toledo, finding that her writing an op-ed piece implying gay rights and civil rights were not the same, was not protected free speech. The administrator argued that her termination for the April 2008 op-ed article in the Toledo Free Press was a violation of her free-speech rights because she wrote it as a private citizen, not on behalf of the university, her employer. The Sixth Circuit found that the administrator's speech was not protected and that, because her public comments contradicted the policies of the university that she was, pursuant to her job description, required to create and enforce, her termination was proper.

Ban on affirmative action in higher education struck down

The Sixth Circuit Court of Appeals, in an 8-7 en banc decision, struck down Michigan's total ban on using racial preferences at state colleges and universities in the State of Michigan. In that case, the State of Michigan had enacted a categorical ban on the use of race in college admissions in 2006. The ban was immediately challenged on constitutional grounds, with the plaintiffs arguing that the ban ran afoul of the 14th Amendment's Equal Protection Clause. The majority opinion struck down the ban, in part, on the fact that the U.S. Supreme Court has said that race is a permissible factor to consider in college admissions. Stay tuned, however, because the Supreme Court itself is now again considering whether race-conscious admissions are permissible.

Court of Appeals, in rare move, reverses Ohio Department of Education on finding educator had committed "conduct unbecoming" the teaching profession

In a rare move, the 10th District Court of Appeals has reversed a finding that an educator committed conduct unbecoming the teaching profession. In that case, a 25 year teaching veteran restrained a student who was out of control. As a result of the restraint, the student ended up with scratches and red marks on his lower back and buttocks. The teacher did not have first aid administered immediately, but allowed the child to proceed home on a school bus, with directions to have the child's mother call the teacher. Once home, the child's mother gave him a bath and applied Neosporin. The teacher did not immediately fill out the paperwork reporting her encounter with the student and his minor injuries. Though she began a report, she was interrupted by teaching preparation. As a result of this, and the fact that her principal was not in school, her report of the incident was was not submitted until the next Monday. On these facts, ODE initiated charges, claiming that the teacher's actions amounted to 'conduct unbecoming' the teaching profession. After a hearing, the ODE found that the teacher had engaged in conduct unbecoming the teaching profession and that her license should be permanently revoked. That finding was upheld by a court of common pleas judge. However, the 10th District reversed the decision on appeal and remanded the case for further proceedings at the Ohio Department of Education. In reaching its decision, the court noted that, "[t]eachers are called upon to make professional judgments every day and the reasonable exercise of such professional judgment cannot constitute a violation of R.C. 3319.31(B) as conduct unbecoming a classroom teacher." Sending the case back to ODE, the agency must now answer the question: "whether a teacher who accidentally inflicts scratches on an out-of-control preschool student deserves disciplinary action from ODE and, if disciplinary action is warranted, what discipline is appropriate?" I would hope for the sake of Ohio's educators that the answer to the first question is no, and that the second question then becomes moot.

Sixth Circuit adopts two year statute of limitations for disability discrimination cases in Ohio

In a case brought against Miami (Ohio) University, the Sixth Circuit Court of Appeals has now clarified that claims brought against universities are subject to a two-year statute of limitations in Ohio. Moreover, cases brought by students or former students against their universities based on either Section 504 of the Rehabilitation Act or the Americans with Disabilities Act must be filed within two years, or they will be time-barred. The case is McCormick v. Miami University.