Driver of chartered bus covered under university's automobile insurance policy, Supreme Court rules

The Supreme Court of Ohio ruled today that when an auto insurance policy issued to a university extends liability coverage to any person operating “with permission” a vehicle that is “owned, hired or borrowed” by the university, that language provides coverage for injuries resulting from a traffic accident in which a bus driver employed by a charter bus company was operating the company’s bus while it was under charter by the university.

This case deals with the tragic bus accident that killed and injured a number of members of the Bluffton University baseball team in March 2007 (as well as the bus driver and his wife). It is believed that the bus driver thought that he was in the carpool lane but really was on a highway exit ramp. The bus then plunged off the overpass onto the highway below.

The charter bus company has already paid $5 million, while the State of Georgia has paid $3 million. The court's ruling, which overturned the decision of the 3rd District Court of Appeals' decision, could mean an additional $21 million dollars for the victims and the victims' families.

Charter school officers liable to state as "public officials," Supreme Court rules

The Supreme Court of Ohio unanimosuly held today that an officer, employee or duly authorized agent of a community school that receives public funds under R.C. Chapter 3314 falls within the statutory definition of a “public official,” and therefore such persons may be personally liable to the state for lost or misspent public funds.

In that case, the defendant was treasurer of the board of directors of a charter school that ultimately failed. An investigation by the State Auditor's office found that the school had been overpaid by around $1.5 million dollars by over-inflating its enrollment numbers.

The state sought recovery of the overpaid funds from the defendant who argued that she was not personally liable for the funds because she was an officer of the corporation who was shielded from liability. The Supreme Court disagreed, holding that she was a public official.

The case now goes back to the trial court in Cleveland to make the determination as to whether or not the defendant's responsibilities at at the charter school included the receipt or collection of public money, or whether she supervised employees who received or collected public money under color of office.

Ohio Department of Education not final decision maker of whether an organization is eligible to sponsor charter school, Supreme Court of Ohio rules

In a 5-2 decision, the Supreme Court of Ohio ruled that the Ohio Department of Education does not have the final say as to whether an organization is "education-oriented" and thus capable of sponsoring a charter school.

In that case, the Brookwood Presybeterian Church had applied to ODE in order to sponsor a charter or "community" school. The ODE, after reviewing the application, denied the request, finding that the organization was not "education-oriented" and thus ineligible to sponsor a school. The statute in question provides that decision's of the Ohio Department of Education in this matter are "final." Thus, when the plaintiff attempted to appeal the decision, both the trial court and the court of appeals held that ODE's decision was not subject to judicial review.

The legal question to be answered by the Supreme Court of Ohio was whether or not the word "final" meant "final and appealable" or that ODE had the right to make the final determination. In reading the provision in context with other provisions in the statute, the Court held, per Justice Pfeiffer, that the denial was subject to appeal by the common pleas court, pursuant to ORC 119.

Note: this does not mean that the plaintiff gets to sponsor a charter school; rather, the opinion merely states that the plaintiff can appeal the denial to the Court of Common Pleas.

Sixth Circuit upholds school district's categorical ban on wearing of Confederate flag

The United States Court of Appeals for the Sixth Circuit sided with a school district in Tennesee in a dispute about whether or not a school district may ban a student from wearing the Confederate flag.

In that case, the student and his father sued the school district after he had been repeatedly required to remove or otherwise conceal Confederate flags he had been wearing. The school district had a policy that “[c]lothing and accessories such as backpacks, patches, jewelry, and notebooks must not display (1) racial or ethnic slurs/symbols, (2) gang affiliations, (3) vulgar, subversive, or sexually suggestive language or images; nor, should they promote products which students may not legally buy; such as alcohol, tobacco, and illegal drugs.” The student contended that this policy violated his First and Fourteenth Amendment rights. The school district contended that the policy was necessary so as to not disrupt the educational process. (The school district had a history of racial problems, including even a bombing of the high school after integration). Ultimately, the trial court granted summary judgment to the school district.

In analyzing the student's claims, the Sixth Circuit reviewed the relevant U.S. Supreme Court precedents on point, namely, Tinker v. Des Moines, Bethel Sch. Dist. No. 403 v. Fraser, Hazelwood School District v. Kuhlmeier, and Morse v. Frederick. The Sixth Circuit then concluded that "cases yield three principles: (1) under Fraser, a
school may categorically prohibit vulgar, lewd, indecent, or plainly
offensive student speech, Fraser, (2) under Hazelwood,
a school has limited authority to censor school-sponsored student speech
in a manner consistent with pedagogical concerns, and (3) the Tinker standard applies to all other student speech and allows regulation only when the school reasonably believes that the speech will substantially and materially interfere with schoolwork or
discipline." [The Court noted that Morse was a case that had no application here.]

In reviewing the claim under this approach, the Court held that the school district had a reasonable belief that the speech would substantially and materially interfere with schoolwork or discipline. The school district was able to cite to numerous instances of racial discord within the school in the last several years. Additionally, the Court turned back Plaintiff's claims that there was viewpoint discrimination because the policy was written and enforced (for the most part) even-handedly.

Columbus City Schools targeted by national group

A national group has filed a Complaint against the Columbus City Schools with the United States Department of Education, alleging violations of Title IX.

As can be read about here, http://www.dispatch.com/live/content/local_news/stories/2010/11/11/girls-access-called-unequal.html?sid=101 the group is alleging that the Columbus City Schools discriminate against females in athletics.

Title IX, originally passed in 1972, provides that "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..."

Though the original statute has no mention of sports in it, it is best known for its impact on female athletics.

Columbus is one of 12 school districts targeted by the National Women's Law Center. Each of the districts that had complaints filed against them had at least double digit dispartities between the percentage of female students versus the number of female athletes.

Student's expulsion appeal untimely, court of appeals rules

The Tenth District Court of Appeals, which covers Columbus and Franklin County, upheld the dismissal of a student's appeal of his expulsion for smoking marijuana prior to attending school.

In that case, the student had been expelled from school for allegedly smoking marijuana before class. The student and his parents appealed the expulsion decision and pursued a hearing on the matter. After the hearing, the school board upheld the expulsion and sent written notice to the student on December 21, 2009.

Thereafter, the student and his parents filed suit on January 20, 2010, appealing the administrative decision of the Board. In dismissing the case, the Court found that the student and his parents had not followed the proper procedure because R.C. 2505.07 requires appeals to be filed within 30 days of the decision, and for the appeal to be filed with the administrative agency, not the court.

Accordingly, the appeal was dismissed and the expulsion stands.

Law requiring background checks for non-licensed employees did not violate Ohio Constitution, Supreme Court rules

The Supreme Court of Ohio today upheld as constitutional two provisions of state law that 1) require Ohio school districts to conduct criminal background checks on non-licensed school employees who were not subject to such checks prior to 2007, and 2) require districts to release from employment current employees if it is determined that they have a prior conviction for certain specified criminal offenses.

The Court held that, as applied to administrative employment contracts entered into by school districts that are subject to R.C. Chapter 124, R.C. 3319.391 does not violate the provision of the Ohio Constitution that prohibits retroactive laws, and neither R.C. 3319.391 nor Ohio Admin.Code 3301-20-01 violates the constitutional provision that prohibits application of a law in a way that impairs the obligation of a pre-existing contract.

Prior to 2007, R.C. 3319.39 required that Ohio public school systems must obtain criminal background checks on all licensed employees, i.e. all teachers and other school employees “responsible for the care, custody or control of a child.” The law prohibited any person found to have a conviction for certain specified offenses from being employed in such a position unless that person could demonstrate that he or she had been rehabilitated under administrative guidelines developed by the Ohio Department of Education (ODE) found at Ohio Admin.Code 3301-20-01. The ODE guidelines specified that persons with past convictions for certain enumerated offenses, including trafficking in illegal drugs, could never demonstrate rehabilitation, in effect permanently barring a person with such a conviction from being employed in a licensed position by a public school system. The background check and unconditional bar against employment of certain former offenders did not apply to unlicensed school employees.

In 2007, as part of Sub. H.B. 190, the General Assembly enacted R.C. 3319.391. This new provision expanded the background check and employment exclusion requirements of the pre-2007 statute to all employees of Ohio public school systems – including unlicensed workers whose duties do not involve direct or unsupervised contact with students. The new statutory language specified that its requirements applied not only to new hires but also to all current unlicensed school employees. It also required that any current school employee found to have a prior conviction for a crime for which rehabilitation was precluded under the ODE administrative guidelines “shall be released from employment.”

In this case, an employee of the Cincinnati Public Schools (CPS) identified in court documents as “John Doe” had worked for CPS in unlicensed positions from 1997 to 2008 without being subject to a criminal background check. In July 2008, Doe entered into a new two-year administrative employment contract with the school district. The contract stated that Doe’s employment was “subject to confirmation of appropriate state certification.” Pursuant to the newly enacted R.C. 3319.391, CPS performed a background check on Doe and learned that he had been convicted of drug trafficking in 1976. CPS informed Doe that because drug trafficking was among the offenses designated as ineligible for rehabilitation in Admin.Code 3301-20-01, his conviction required the district to terminate his employment.

Doe filed suit in the Hamilton County Court of Common Pleas court against CPS and the district’s interim superintendent, Mary Ronan, seeking a declaratory judgment that the application of R.C. 3319.391 and Admin.Code 3301-20-01 to terminate his employment violated provisions of the U.S. and Ohio constitutions. CPS exercised its prerogative to remove the case to the U.S. District Court for the Southern District of Ohio. The district court determined that adjudication of Doe’s claims would require a constitutional analysis of Ohio R.C. 3319.391 and Admin.Code 3301-20-01. Rather than conducting that analysis itself, the federal court submitted certified questions of state law to the Supreme Court of Ohio. The Court agreed to determine whether 1) R.C. 3319.391 and Admin.Code 3301-20-01 violate the prohibition in the Ohio Constitution against laws that impair pre-existing contractual rights, and 2) whether R.C. 3319.391 violates the prohibition in the Ohio Constitution against retroactive laws.

Writing for the majority in today’s decision, Justice Cupp answered both certified questions in the negative.

With regard to Doe’s impairment of contracts claim, Justice Cupp wrote: “Doe and CPS executed the July 2008 employment contract eight months after the effective date of the provisions of H.B. 190, which imposed the new background-check requirements. Because Doe’s 2008 employment contract with CPS was executed after the date the statutory change became effective, the new background-check requirements and the employment-disqualification standards of Ohio Adm.Code 3301-20-01 became incorporated as implied terms and conditions of Doe’s contract. Thus, Doe cannot demonstrate that R.C. 3319.391 impaired his employment contract with CPS, because there was no contract between Doe and CPS to substantially impair.”

The court acknowledged that, several months after Doe’s firing in April 2009, ODE adopted a new administrative regulation, Adm.Code 3301-20-03, that permits the discretionary retention of an unlicensed school district employee with a past drug trafficking conviction if the conviction was more than 10 years in the past and the employee meets other rehabilitation criteria. Justice Cupp noted, however, that at the time CPS was informed of Doe’s conviction in 2008, the district was obliged to act under the regulation then in place, and that regulation required that Doe’s employment be terminated.

“Had Ohio Adm.Code 3301-20-03 been promulgated more quickly upon the enactment of H.B. 190, Doe’s R.C. 2925.03 drug-trafficking conviction would not have constituted a nonrehabilitative offense and he could likely have met the conditions to show rehabilitation such that CPS could have maintained its employment relationship with him,” wrote Justice Cupp. … “Unfortunately, delay is often an inherent characteristic of the rulemaking process. The effect that the delay in the administrative rulemaking process had on Doe’s career is regrettable. … Regardless, the ODE acted pursuant to its statutory grant of discretionary rulemaking authority and was under no obligation to amend the Ohio Adm.Code to make different rehabilitation provisions for nonlicensed positions.”

The court also rejected Doe’s argument that R.C. 3319.391 was unconstitutionally retroactive because it made a new condition on his employment by CPS based on conduct that took place before he was first employed by the district. He wrote: “Doe’s contention notwithstanding, the background-check legislation in R.C. 3319.391 is prospective in application. This legislation simply imposed a new restriction on the school district regarding the qualifications of persons it could employ after a specific date with a focus on those persons who have had felony convictions. … Doe has not been deprived of any pay, retirement credit, or other benefits he accrued during his tenure with CPS. Instead, the conduct that the background-check legislation prohibits, i.e., continued employment after a disqualifying criminal-background check, occurs only after the effective date of the statute, November 14, 2007.”

The majority opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Judith Ann Lanzinger.

Justice Stratton also entered a concurring opinion in which she wrote: “Although we have resolved the federal court’s legal questions under the Ohio Constitution, I believe that on remand the court may resolve this case by resorting to the doctrine of relation back. Under this doctrine, ‘an act done at a later time is, under certain circumstances, treated as though it occurred at an earlier time.’ … This doctrine applies to the amendments of pleadings, see Civ.R. 15(C), but I believe that it should apply here in the interest of equity. The Ohio Department of Education had statutory authority to formulate the rules to carry out the legislative intent of 2007 Sub.H.B. No. 190. … The department promulgated Ohio Adm.Code 3301-20-03 to carry out the legislative intent of H.B. 190. Unfortunately, Doe fell into the gap between enactment of the new law and the department’s regulations in response to the 2007 statutory revisions. The parties agree that had the 2009 regulation been in effect, Doe would have remained in his position, because he had been rehabilitated. Thus, I believe that the regulation should ‘relate back’ to the statute’s enactment.”

Teachers have no First Amendment rights while engaged in "official duties" in classroom, U.S. 6th Circuit Court of Appeals rules

Teachers do not have a First Amendment right to "to select books and methods of instruction for use in the classroom without interference from public officials," the Sixth Circuit Court of Appeals ruled today in Evans-Marshall v. Bd of Educ of Tipp City Sch Dist.

In that case, the teacher had a contract to teach English to 9th and 11th grade students and a creative writing course to 11th and 12th grade students. At the beginning of the fall semester, the teacher assigned Ray Bradbury’s Fahrenheit 451 to her 9th graders. To the end, in exploring the book’s theme of government censorship, she distributed a list compiled by the American Library Association of the “100 Most Frequently Challenged Books.”

Students divided into groups, and the teacher asked each group to pick a book from
the list, to investigate the reasons why the book was challenged and to lead an in-class debate about the book. Two groups chose Heather Has Two Mommies by Lesléa
Newman.

A parent complained about Heather Has Two Mommies, and the principal,
asked the teacher to tell the students to choose a different book. She
complied, explaining to her class that “they were in a unique position to . . . use this experience as source material for their debate because they were in the . . . position of having actually experienced censorship in preparing to debate censorship.” After the class completed the Fahrenheit 451 unit, Evans-Marshall assigned Siddhartha by Hermann Hesse and used it as the basis for in-class discussions about “spirituality, Buddhism, romantic relationships, personal growth, [and] familial relationships.”

Thereafter, at two school board meetings, the teacher was criticized by parents for her choice of books and for her teaching methods, even though the books had been bought by the District several years earlier and had been on the school district's list of optional reading. While a few members of the school board called for understanding and non-censorship, it seemed most parents were against the teacher's book choices.

Thereafter, the principal discovered that the teacher had dissiminated to a few of her students examples of a creative writing assignment, one of which dealt with rape, and the other with a murdered priest. From there on, the relationship between the principal and the teacher spiraled downward. Indeed, the principal soon after gave the teacher a poor review and she was subsequently non-renewed by the board of education.

She then filed suit in federal court, claiming retaliation in violation of her First Amendment right to free speech.

In analyzing her claims, the 6th Circuit employed a three part analysis. It began by asking whether the teacher's statements were those made on "matters of public concern." Connick v. Myers. Then, it asked, if the matter was one of public imporance, If the employee establishes that her speech touches “matters of public concern,” a balancing test determines whether the employee or the employer wins. Pickering v. Board of Education. Then, if the employee wins the balancing test, the court had to ask itself whether or not the public employees statements were made pursuant to their official duties. Garcetti v. Ceballos. If they were, the employees were not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

Here, the Court found that while the matters did touch those of public concern (public school curriculum) and that the teacher's interest in free speech trumped the school district's, the teacher's statements were made pursuant to her official duties as a teacher, not as a citizen. Thus, the teacher's statements and actions were not protected under the First Amendment and the school district was able to terminate her employment.

The Sixth Circuit's decision today further restricts what teachers and administrators may say while they are "on the clock" and in their formal role they were hired to perform.

The Court was also quick to point out that the decision applies only to public primary and secondary schools and not necessarily in a college or university environment.

University liable for dorm room break in

The Court of Claims today held that when a university dormitory door has a defect, it is liable for damages resulting from a break-in of that door.

In that case, a student at Ohio University ("OU") had his belongings stolen from his dorm room over Christmas break. A review by OU maintenance determined that the anti-pick device on the dormitory door was not installed properly.

Pointing to Chetsko v. Miami Univ., Ct. of Cl. No. 2007-03960-AD, 2007-Ohio-4395 and
Smith v. Miami Univ., Ct. of Cl. No. 2008-10501-AD, 2009-Ohio-2418, the Court of Claims held the university liable for the replacement costs of the stolen goods as well as the filing fee and court costs.

Bill to allow teachers to deduct classroom materials from income tax proposed

Ohio State Senator Eric Kearney, D-Cincinnati, introduced S.B. 290 to allow teachers to write off on their Ohio income tax the amounts that they spend for instructional materials in their classroom.

Under the bill, the tax commissioner has the right to request that the teacher provide a receipt for each item used in calculating the deduction and a letter from the teacher's employer confirming that the items were used for classroom instruction. Only teachers in grades K-12 are eligible, and are required to hold an educator license. Teachers who instruct a child exclusively at home and not eligible for the deduction.

The Ohio Education Association has not taken an official stance yet on the legislation. Stay tuned.

School Districts do not have standing to pursue IDEA claims, Sixth Circuit rules

In a case that pitted local educational agencies against a state department of education, the U.S. Court of Appeals for the Sixth Circuit ruled that the local school district did not even have the right to bring the case in Court under the Individual with Disabilities in Education Act.

After a review of the text of the statute, and relevant case law, the court found that local educational agencies did not possess an explicit or implicit private right of action pursuant to 20 U.S.C. § 1415(i)(2)(A) [IDEA] to challenge a state agency’s compliance with certain “procedural safeguards” set forth in § 1415(b) of the IDEA.

That is, the Court found that the the procedural safeguards articulated
in the statute were enacted so that parents with disabled children could enforce their child’s right to a free appropriate public education, not for local school districts.

This is the first time that this issue has been decided by the Sixth Circuit, which includes Ohio.

African-American teacher's appeal denied

The Eight District Court of Appeals, which covers Cuyahoga County, has denied a teacher's appeal from a lawsuit claiming he was discriminated against because of his race.
The plaintiff teacher, who was an African-American, filed a complaint in the trial court against the defendant board of education alleging that it failed to promote him to the position of assistant principal and hired a less-qualified Caucasian applicant instead.

In that case, the teacher had applied for an assistant principal position. The school board, after interviewing two candidates, chose the Caucasian candidate over the African-American candidate. Believing that the school district lacked a legitimate non-discriminatory reason for taking the action that it took, the teacher filed a lawsuit. However, the trial court decided no genuine issue of material fact existed, and that the school board won as a matter of law. The teacher appealed to the Eight District Court of Appeals.

The appeals court determined that the school board had legitimate reasons for choosing the Caucasian applicant over the African-American teacher. Moreover, the school board's committee reviewed the candidates’ application materials, asked each candidate the same questions from a prepared list of questions, and considered the strengths and concerns related to each candidate. The committee believed that both men were qualified, but the Caucasian applicant was better qualified than the plaintiff because he had more leadership experience relating to building and district-wide initiatives that impacted both students and staff issues. Thus, there was no evidence in the record of a discriminatory animus. Further, having found no evidence of racial discrimination, the plaintiff's alleged claim of emotional distress resulting therefrom also failed.

Consequently, the court of appeals agreed there was no discrimination.

U.S. Supreme Court sides with law school in non-discrimination case

The U.S. Supreme Court ruled today that a law school's non-discrimination policy does not run afoul of the U.S. Constitution by requiring all groups that are recognized and funded by a university to sign a pledge of non-discrimination.

The case before the court came as the result of a dispute between the University of California, Hastings and the Christian Legal Society. The university had a policy that all student groups had to be open to all individuals. Moreover, the university required all groups to sign a pledge that they would not discriminate based on, among others, religion and sexual orientation. The Christian Legal Society refused to sign the pledge and filed suit, alleging, among other things, a violation of their First Amendment rights of self-expression.

All lower courts that had considered the matter had sided with the university. The Supreme Court affirmed the decisions of the lower courts.

Teacher reinstated, but board of education does not have to pay attorney fees, appeals court rules

The First District Court of Appeals today affirmed a decision by a trial court to reinstate a teacher who was terminated by his board of education under R.C. 3319.16 for "good and just cause" for alleging throwing a basketball at a student. That court, however, also found that the teacher was not entitled to attorney fees because his district did not act in bad faith.

The case involved a physical education/health teacher who had 20 years experience. Throughout his tenure, he had received positive reviews and had eight consecutive years of perfect attendance. In his evaluations, the teacher was specifically complimented on his (1) "strong discipline"; (2) his "professional manner"; (3) having "full control of * * * his classes"; (4) his "classroom management"; (5) his "professional manner structure and organization"; (6) the fact that "safety is stressed in both health and PE"; (7) being a "good role model"; and (8) being a "true professional who is a great role model for the students."

In June 2007, a male student athlete who stood six feet seven inches left the teacher's class without permission and began "shooting hoops" in the gymnasium. The teacher found the student and instructed him to go to the locker room to change clothes and then to attend his next class. The teacher had to instruct this student three times before the student complied. The student changed in the locker room, but instead of going to his next class, he went back to the gym to play basketball. The teacher again instructed the student, at least five or six times, not to shoot the basketball and to leave the court. When the student refused to comply with the instructions, the teacher, "with a two-hand push" of his own basketball, knocked the basketball the student was holding out of the student's hands in an effort to get him to leave the court. The student was angry and approached the teacher, but another teacher escorted the student from the gymnasium. The student was not injured.

Although the student claimed that he had been hit in the stomach, another student who had witnessed the incident stated that the ball that the teacher had thrown hit the basketball in the student's hands. The teacher was suspended indefinitely without pay.

The male student's mother initiated criminal proceedings against the teacher. The state charged him with assault, but he was acquitted following the presentation of the state's case due to the failure to prove that he had knowingly caused or attempted to cause physical harm to the student. The student had testified that the teacher had not thrown the ball "very hard" at him and that he had not believed that the teacher intended to harm him. He further testified that he had not been injured.

As a result of this incident, the Board initiated termination proceedings against the teacher. After hearing evidence, a referee determined that the teacher had not intended to throw a basketball at the student and that there was a difference between throwing a ball at a student and throwing a ball at an object the student was holding. The referee recommended reinstatement.

The Board of Education, however, terminated the teacher's contract, not agreeing with the referee's distinction between throwing a ball at a student and throwing a ball at an object a student was holding. The teacher appealed to the Court of Common Pleas, who agreed with the referee, that the incident was not a "fairly serious matter." The Court also awarded the teacher all of his attorney fees.

The Board of Education appealed. The Court of Appeals agreed that the incident was not a "fairly serious matter" but disagreed with the trial court that the board acted in bad faith. Thus, it upheld the teacher's reinstatement, but denied his attorney fees.

The case is Stalder v. St. Bernard-Elmwood Place City School District, 2010-Ohio-2363.

Appeals Court Upholds Grant of Unemployment to Special Education Teacher

The Ninth District Court of Appeals has upheld the decision of a trial court finding that a special education teacher was terminated without just cause.

In that case, the special education teacher was discharged by her board of education for allegedly abusing a student in her care. She was initially denied unemployment benefits, after there was a finding that she was discharged for just cause. However, the teacher continued her appeals, and the decision was subsequently reversed by the review commission.

The review commission's decision was appealed to the Court of Common Pleas, which upheld the decision of the review commission. That decision was affirmed by the Ninth District. In reaching its decision that the trial court's decision was not unlawful, unreasonable, or against the manifest weight of the evidence, the appeals court relied on the facts that a county children services did not reveal bruising on the child's wrist or neck. Also, the children services’ final determination was that the claim of abuse was unsubstantiated and the Center for the Teaching Profession after conducting an investigation determined there was no abuse and renewed the appellee individual's teaching certificate. Furthermore, the state Department of Mental Retardation and Developmental Disabilities did not place the appellee individual on its registry of those who had abused students.

Accordingly, the teacher was able to collect her unemployment benefits.

Supreme Court of Ohio sets oral arguments in school background check case

The Supreme Court of Ohio has set oral arguments for June 8, 2010 in a dispute over the constitutionality of a law requiring the termination of all school employees with certain convictions.

In that case, the plaintiff was terminated his contract from his position of 11 years with the Cincinnati Public Schools after it was found out that he had been convicted of selling narcotics in 1976. The conviction had been expunged from his record and the plaintiff had been rehabilitated and not committed any other crimes.

The lawsuit alleges violations of both state and federal law. The federal court asked the Supreme Court of Ohio to clarify whether the statute violated two provisions of the Ohio Constitution, namely, (1) whether the statute was impermissibly retroactive under Article II, Section 28 and (2) whether the statute violated the Contracts Clause of the Ohio Constitution.

After the Supreme Court makes its determination, the lawsuit will likely be sent back to the federal court for determination of the federal issues.

Immunity applies when office holder is sued in his official capacity

The Supreme Court of Ohio today ruled, 6-1, that public officeholders, sued in their official capacity, are immune from liability pursuant to R.C. 2774.02, (political subdivision immunity analysis) rather than the “political subdivision employee” immunity standards set forth in R.C. 2744.03(A)(6).

In that case, the plaintiff sued the Hamilton County Clerk of Courts for publishing her private information online after receiving a traffic citation.

The First District Court of Appeals found that political subdivision employee analysis applied. However, the Supreme Court found that political subdivision analysis applied and that the Clerk of Courts was immune from such suit because it occurred in his official capacity.

The same analysis would be applicable to school board members when sued in their official capacity.

College of Medicine did not breach contract with student, appeals court rules

Case Western Reserve University did not breach its contract with a student when the school dismissed him from its medical school, the Eighth District Court of Appeals ruled last week.

In that case, the medical student was put on leave after failing four exams during his second year of medical school. He was also required to complete a program focusing on interpersonal communications skills and counseling. After completion of the program, the student would be considered for restarting his second year.

The student went on to repeat his second year at the medical school. However, he was referred to the Committee on Students in Spring 2005 after a faculty member wrote a letter complaining about his behavior in the faculty member's lab (2) an incident that had occurred earlier in his career in which a female student complained that he was harassing her and (3) the student's failure to remediate a failed exam. The Committee required the student to remediate the exam and submit a "fitness for duty" examination.

The fitness for duty exam concluded that the student had a personality disorder and had an inability to perceive or admit to his own mistakes. The report noted that the student believed himself to be superior, was unable to self-evaluate and self-criticize, and is interpersonally exploitative and lacks sympathy. The examiner viewed those traits as a "concern to anyone training a medical student."

Thereafter, the committee reviewed this and other information and decided to dismiss the medical student. He appealed his dismissal, though the committee's decision was ultimately upheld. A Dean of the medical school gave the student the option to withdraw before the letter dismissing him was issued. The student submitted a letter to the Dean withdrawing him, though he could not recall whether he was told that his record would reflect that he withdrew in lieu of dismissal.

The student then filed suit. He claimed that (1) Case was required to provide him with written notice of the grounds upon which the school intended to dismiss him, and with a hearing at which he could be present (2) there are material facts as to whether Case complied with its own contractual procedures in dismissing him.

As to these grounds, the court found that Case, as a private institution, owed no constitutional right of due process. Additionally, the court found that though there was custom to allow the student to be present during the Committee hearing, the custom did not rise to the leval of a contractual obligation.

Furthermore, the student requested declaratory judgment prohibiting the school from placing a notation on his file that he "withdrew in lieu of dismissal." The Court upheld the trial court's refusal to issue a declaratory judgment prohibiting such a notation on the file.

Public school may be liable if employees were reckless, says appeals court

A school district may be liable if its public employees acted recklessly, the 9th district appeals court ruled last week in E.F. v. Oberlin City School District. At the same time, the court ruled that, as to the facts of that particular case, the school district was not liable under other theories of liability.

In that case, E.F., a child with Down syndrome, filed a complaint against the school district, the board of education, and certain employees of the school district after she was purportedly sexually assaulted on school grounds by two boys. The amended
complaint contained counts alleging negligence and recklessness; violations of the Individuals with Disabilities Act; violations of R.C. Chapter 3323; as well as intentional infliction of emotional distress. It also stated that the sexual assault occurred as the result of "extreme lack of teacher oversight."

The defendants sought judgment on the pleadings, requesting that the court find in their favor without a trial. After the plaintiffs answered, the trial court granted the defendants' motion, finding no liability on any of the defendants. The plaintiffs then appealled.

The appeals court agreed with the trial court's findings, except that the Court believed that E.F's cause of action alleging employee recklessness should be able to go forward. Indeed, the amended complaint stated (1) that E.F. was sexually assaulted under circumstances where there was a “recklessness and an extreme
lack of teacher oversight relating to the facts of these incidents," (2) that a substitute teacher was responsible for monitoring the classroom at the time of multiple incidents where E.F. was assaulted (3) that the school was aware that one of the students who attacked E.F. had “a history of *** psychological issues relating to abuse and assault," (4) that “Oberlin Schools recklessly placed these students into a class with mentally handicapped students, such as E.F, with full knowledge of such student’s (sic) propensity to abuse the disabled students in the classroom," (5) that “Defendants also acted recklessly in the monitoring of classrooms which E.F was in” and further that “[a]ll regular teachers and substitute teachers acted recklessly in monitoring the children of his/her classroom by failing to even notice when students disappeared from the classroom.” The complaint also states that the recklessness of teachers “resulted in E.F. being sexually assaulted by the [s]tudents.”

The reversal by the appeals court does not mean that the school district is in fact liable, but rather that the Plaintiffs should have an opportunity to attempt to prove that the school district is liable because its employees acted recklessly.

Federal court dismisses complaint against Ohio University

The U.S. District Court for the Southern District of Ohio dismissed a case brought against Ohio University by a graduate doctor of the College of Osteopathic Medicine.

The case centered upon whether or not a state university may demand reimbursement from an out of state student who reneged on promises to practice in Ohio after graduation.

The university regularly collects six-figure annual sums from out-of-state alumni of its College of Osteopathic Medicine who default on a contractual agreement they must sign to be enrolled.

Non-Ohio residents who want to attend the medical school must agree to practice in Ohio for five years. Those who renege must pay back what the state invested in their education.

The student filed suit, alleging that the contract violates the "commerce clause" of the U.S. Constitution because the payment the university exacts for default is a penalty for opening a medical practice in another state and therefore an illegal restriction on interstate commerce.

The Court dismissed the case on procedural grounds without reaching the merits of the case, finding that the student was outside the statute of limitations to bring such a claim.

Court finds school district not liable for sex abuse

The Twelfth District Court of Appeals today has upheld a trial court's decision finding that a public school district is not liable for sex abuse of a student when, among other things, the abuse happens off of school grounds.

The case involves a minor student who participated in a special needs tutoring program. The tutoring was supposed to occur at the local library, but at some point started taking place at the tutor's house. The tutor and the student ended up engaging in sexual activity at her home. Subsequently, the tutor was criminally charged, pled guilty, and she served a six month prison sentence (as well as now being a registered sex offender).

Thereafter, the student filed suit against the school district. However, because the actions of the employee took place off of school grounds, and because the claim did not involve 'physical defects' of the school grounds, both the trial court and the appellate court were unwilling to find liability on the part of the school district.

Central Ohio school district bans PG-13, R-rated films

The Marysville School District has, at least temporarily, banned PG-13 and R rated movies from the school's curriculum. The ban is the result of complaints by parents that such films contain too mature of a content for high school students. Thus, historical films like "Schindler's List" and "Saving Private Ryan" will now be off limits to students within that district.

Generally, courts uphold the right of boards of education to make decisions like which course materials to use against the constitutional claims of students and teachers alike. However, the case may be different if these materials are held in the library where students may access them, and are being removed "simply because they dislike the ideas contained in those books and seek by their removal to 'prescribe what shall be orthodox in politics, nationalism, religion, and other matters of opinion.'"

However, showing the films in a classroom (as opposed to private student viewing) may be more likely to bear the school's 'imprimatur' and probably can, consistent with the First Amendment, be banned pursuant to school board policy. See e.g. Hazelwood v. Kuhlmeier, 484 U.S. 260.

College may have violated the Ohio Consumer Sales Practices Act, Court of Appeals rules

The Second District Court of Appeals held last week that there was enough evidence to proceed against a college for a violation of the Ohio Consumer Sales Practices Act, but not for breach of contract or fraud.

That case involved two former college students who were not granted degrees based on the fact that neither of them successfully completed externships at the end of their programs. However, the students successfully argued that the College had not provided the full surgical technology program during their regular term of
enrollment. Moreover, the College made the students wait a number of months after they had completed the "academic" portion of their program before providing them externships despite the fact that the college had represented to incoming students that it would provide them with a course of study culminating in a required externship during the final term.

The Court found that, as viewed from the perspective of the students, this could amount to a violation of the Ohio Consumer Sales Practices Act, as it could be unfair and deceptive. In so doing, the Court reiterated its previous precedent that requiring a consumer to wait for performance under a contract could amount to a violation of the Ohio Consumer Sales Practices Act.

Supreme Court rejects "public duty" defense for public employees

In a 6-1 opinion last week, the Supreme Court ruled that the “public duty rule” does not immunize employees of a political subdivision from personal liability for injuries they cause in the performance of their official duties in cases where the injured party alleges that the employee engaged in “wanton or reckless conduct.”

In that case, the estate of the a woman killed by a drunk driver brought a lawsuit against police officers employed by a city. The suit alleged that the police officers allowed the drunk driver, who had been arrested the day before, to improperly obtain his vehicle. After improperly obtaining his vehicle, the day after his arrest, the drunk driver killed the woman in a head-on collission. Her estate alleged that the police officers acted wantonly and recklessly in allowing the drunk driver to obtain his vehicle the day after his arrest. The police officers alleged that the common law "public duty doctrine" applied. That doctrine provides immunity from civil liability in cases where a public employee causes injury to a third party through the breach of a “public duty,” i.e., by failing to perform a general duty owed to the public as a whole, as opposed to an individualized duty owed to the specific person seeking damages.

The Supreme Court refused to apply the "public duty" doctrine to the matter.

The relevance to educators is that despite the public duty doctrine, they may still be held liable for actions that are deemed to be "wanton or reckless."

Teacher not entitled to continuing contract, appeals court rules

An Ohio appeals court upheld the dismissal of a teacher who claimed he had a legal right to a continuing contract in the case of State ex rel. Browne v. Sandusky School District Board of Education.

In that case, the teacher had graduated with a Bachelor of Fine Arts degree from Bowling Green State University. In the spring semester of 1983, he enrolled in and received three credit hours in the area of licensure or in an area related to the teaching field. In the spring semester of 1994, at Bowling Green State University, Mr. Browne enrolled in and received credit for 18 hours of coursework in the area of licensure or in an area related to the teaching field.

On June 20, 1994, the Ohio Department of Education issued appellant his
first four-year provisional teaching certificate; at that time, appellant did not hold a master's degree. From 1994 until present, Mr. Browne has been employed with the Sandusky City School District. Following the issuance of his initial teaching certificate through 2003, appellant completed ten hours of coursework in his area of licensure or in an area related to the teaching field.

Believing that he had attained eligibility for a continuing contract, Mr. Browne
applied for a continuing contract for the 2005-2006 school year. In November 2005,
Mr. Browne was informed that he needed to complete two additional semester hours in order to be eligible for continuing contract status. In 2006, Mr. Browne completed an additional three hours of coursework. Also in 2006, he was issued a five-year professional license by the Ohio Department of Education.

In November 2006, Mr. Browne again requested that the Board consider his
eligibility for a continuing contract. In a letter dated December 8, 2006, the Superintendent informed Mr. Browne that, upon closer inspection of
his transcripts, the semester hours that appellant completed following his baccalaureate degree but prior to his initial licensure did not count toward the 30 semester hour requirement for continuing contract purposes. The Superintendent then informed appellant that he needed to complete 20 additional semester hours to be eligible for continuing contract status.

Mr. Browne did not complete any additional semester hours but continued to
assert his right to a continuing contract. On September 18, 2007, the Board again denied his request for a continuing contract.

On July 15, 2008, he filed a complaint for a writ of mandamus
requesting that the Erie County Court of Common Pleas compel the Board to issue him a
continuing contract. Specifically, he asserted that, pursuant to R.C. 3319.11,
he had a clear legal right to a continuing contract; the Board was under a duty to
award him a continuing contract; and that he had no adequate remedy at law.

On the school board's motion, the trial court dismissed the case. The appeals court upheld the dismissal, finding that Ohio Revised Code 3319.08(B)(2)(a) requires that 30 semester hours, in their entirety, must be commenced and completed following the issuance of the initial teaching certificate. Mr. Browne had argued that teachers could commence taking the hours beforehand. The lesson to teachers is that if they want their semester hours to count towards continuing contracts, they should only begin such coursework upon the initial issuance of their licensure.