Law firm invoices, other documents, protected by attorney-client privilege, Supreme Court rules

The Supreme Court of Ohio refused to grant a writ of mandamus, this week, in a public records request case that pitted a school district versus a parent. In that case, the parent had sought access to (1)itemized invoices of law firms providing services to the district in matters pertaining to the parent and her children and (2) communications from the school district’s insurance carrier identifying attorney Janet Cooper as the district’s legal representative and describing the liability and exposure of the district and insurance company related to a case filed against the district by the parent on behalf of one of her children.

The school district provided the parent with summaries of the
invoices noting the attorney’s name, the invoice total, and the matter involved.
The district did not, however, provide the parent with the requested itemized
invoices, because they contained what it considered to be confidential
information, stating, that the itemized monthly statements contain descriptions of
the work performed by the attorneys of Bricker and Eckler, L.L.P. and include:
statements regarding their communications to each other and insurance counsel; the areas and issues the attorneys researched; and the legal issues
upon which they focused their attention.

After protracted requests and negotiations, the parent filed a request with the Supreme Court that the school district be ordered to turn over the records. Ultimately, the Supreme Court determined that the records requested were confidential and privileged, due to attorney-client privilege between the district and its counsel.

Exception does not apply; Sixth Circuit affirms dismissal of parents' IDEA Complaint

The 6th Circuit Court of Appeals this morning upheld a district court's dismissal of a lawsuit brought pursuant to IDEA because the parents refused to exhaust their administrative remedies.

In that case, the student had been diagnosed with Asperger’s Disorder,
Attention Deficit Hyper Activity Disorder, Anxiety Disorder, and Major Depressive Disorder. During the second half of the 2008-09 school year the student's performance began to decline and he developed anger issues and demonstrated explosive behavior.

As a result of these changes, the parents requested that a Multifactored Evaluation (MFE) be performed. The school district initially refused, and ultimately concluded that the child did not meet the definition of disabled under IDEA and was therefore not entitled to an Individualized Education Plan (IEP). After additional information was submitted to the school district, and additional negotiations took place, the parents filed a lawsuit in the United States District Court for the Southern District of Ohio alleging violations of, inter alia, the Individuals with Disabilities Act (IDEA). The district court then put on an agreed order that the school district would perform an MFE, which the district subsequently conducted.

The school district then filed a motion to dismiss the action, alleging the parents had failed to exhaust their administrative remedies. Further, the parents filed a motion for attorney fees, alleging that they were the prevailing party because the school district agreed to perform an MFE.

Generally, before filing a lawsuit under IDEA, parents are required to exhaust state administrative remedies. This requirement does have an exception when it would be futile or inadequate to protect a plaintiff's rights.

Here, the Court found that the exception did not apply and that the trial court properly dismissed the complaint because the parents had not filed a request for an administrative hearing.

Teacher's appeal of non-renewal must be filed with Board of Education, Court rules

Earlier this month, the Third District Court of Appeals of Ohio agreed with a trial court that dismissed a teacher's complaint after he was non-renewed by his school district. The reason was because the teacher failed to initially file a notice of appeal with the board of education, and instead, went straight to court.

In that case, the teacher was informed that his contract was to have been non-renewed after approximately a decade of service. The teacher requested a hearing regarding the non-renewal, which was subsequently granted by the Board of Education. Thereafter, the Board of Education affirmed its decision to non-renew his contract. Twenty eight days later, the teacher filed a complaint in the Marion County Court of Common Pleas.

The school district responded by filing a motion to dismiss the complaint, which was granted by the court. The school district argued, and the court agreed, that before the complaint was filed, the teacher should have filed a notice of appeal with the Board of Education within 30 days of the decision of the Board not to renew the contract.

The appellate court agreed that the teacher has 30 days to file his appeal, and that appeal must first be filed with the Board of Education.

Two cases in the last week help shape school district's right to punish students for cyberbullying & cyberspeech

Two cases from two different federal appellate courts have reached similiar conclusions with respect to discipline of students for online, off-school activity. Though neither case comes from the United States Court of Appeals for the Sixth Circuit, the court that hears federal appeals from Ohio, both cases are instructive as to how a similiar situation may be dealt with within the public schools of the state.

The first case came out of the 4th Circuit Court of Appeals, and originated in West Virginia. In that case, a student had created a fictious MySpace profile from home which was "largely dedicated to ridiculing a fellow student." The student invited approximately
100 people on her MySpace "friends" list to join the group. MySpace discussion groups allow registered users to post and respond to text, comments, and photographs in an interactive
fashion. Approximately two dozen High School students responded and ultimately joined the group, posting comments and pictures directed towards a particular student. The first student to join the group did so from a school computer during an after hours class.

The student who had been ridiculed's parents contacted the school district within a few hours and the site was changed.

School district officials believed that there was a sufficient nexus with the school to impose punishment. School administrators concluded that the student had created
a "hate website," in violation of the school policy against "harassment, bullying, and intimidation." For punishment, they suspended the student from school for and issued her
a "social suspension," which prevented her from attending school events in which she was not a direct participant.

The suspended student ultimately sued the school district for a purported violation of her First and Fourteenth Amendment rights. The district court entered summary judgment in favor of the defendants, concluding that they were authorized to punish
the student because her webpage was "created for the purpose of inviting others to indulge in disruptive and hateful conduct," which caused an "in-school disruption."

In affirming the decision of the trial court, the appeals court concluded that the student had used the Internet to orchestrate a targeted attack on a classmate and did so in a manner that was sufficiently connected to the school environment as to implicate the School District’s recognized authority to discipline speech which "materially and substantially interfere[es] with the requirements of appropriate discipline in the operation of the school and collid[es] with the rights of others." Tinker v. Des Moines Indep. Community
Sch. Dist., 393 U.S. 503, 513 (1969).

The case caption is Kowalski v. Berkeley County Schools.

In another case, from the Eighth District Court of Appeals, in a case that originated in Missouri, upheld the right of a school district to punish a student who had made death threats regarding other students via instant messenger. The threats were made by one student to his friend while both students were on their home computers. The student named particular students, and groups of students, and had said that he had wanted the school to be known for something.

Alarmed, the student receiving the instant messages contacted an adult, who contacted the principal. The student was then placed into juvenile detention. Subsequently, the school principal received a number of phone calls from concerned parents. Security was required to be increased. At that point, the district made the decision to suspend the student who had made the threats because it had been disruptive to the school environment.

The student subsequently returned to the school and graduated ahead of his class.

Nonetheless, his parents instituted a lawsuit, which found its way into federal court. With respect to the alleged violation of the student's First Amendment rights, the district court found that the court held that the student's speech had been an unprotected true threat and
alternatively that the District could properly discipline him for his speech because of
its disruptive impact on the school environment. The appeals court affirmed the decision.

The case is D.J.M v. Hannibal Public School District #60.

The bottom line with both of these cases is that the more of a nexus the speech has to the school, along with a reasonable showing of disruption to the school community, the more likely the courts will be in upholding student discipline involving cyberspeech.

Law school not liable for alleged breach of contract, other causes of action

The United States Court of Appeals for the Sixth Circuit this morning affirmed a ruling by a trial court that granted summary judgment to the University of Dayton Law School on claims brought by a former law student for breach of contract, promissory estoppel, and various torts.

In that case, brought in the U.S. District Court for the Southern District of Ohio, a student had been suspended from the law school for at least three semesters for purported violations of the law school's honor code.

The plaintiff made multiple allegations, including that the law school's Honor Council denied him the opportunity to impeach the prosecution’s student-witnesses and that it misconstrued the Law School’s “Quiet Period” rule, applying terms explained in a school-wide email from the Registrar, rather than an alternate, oral explanation that
that a dean at the law school had given the student.

It is well-settled that a student-university relationship is contractual in nature. However, universities generally have the right to make policies affecting them. Courts therefore will not interfere with a private university’s right to make regulations, establish requirements, set scholastic standards, and enforce disciplinary rules absent “a clear abuse of discretion.” Schoppelrei v. Franklin Univ., 228 N.E.2d 334, 336 (Ohio Ct. App. 1967).

Here, the appellate court upheld the finding that the the university did not abuse its discretion and did not breach the contract. Similarly, the appeals court affirmed the decision of the trial court with respect to the other errors brought to it by the student.

College student properly dismissed, court rules

A college student who had been disciplined three different times was properly dismissed, an appeals court has ruled. In that case, the student had been provided a copy of the student handbook at the beginning of his enrollment at the college. Thereafter, he had been disciplined three times. Accordingly, and purportedly pursuant to college policy, the student was permenantly dismissed from the program. The student then brought a lawsuit, alleging a breach of contract. The appeals court reiterated Ohio law that that "it is well-settled that there is a contract established when a student enrolls, pays tuition, and attends classes at a school. This contract is typically found in a handbook, catalogue, or other guideline. Smith v. Ohio State Univ. (1990), 53 Ohio Misc.2d 11, 13; Elliot v. Univ. of Cincinnati (1999), 134 Ohio App.3d 203. Furthermore, when dealing with such a breach, the court is to defer to the decisions of the school unless it can find " "such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.' " Bleicher v. Univ. of Cincinnati College of Med. (1992), 78 Ohio App.3d 302, 308; quoting Regents of the Univ. of Mich. v. Ewing (1985), 474 U.S. 214, 225, 106 S.Ct. 507. Here, however, the Court found that proper procedures were followed by the school in disciplining, and eventually removing appellant. These actions were spelled out in the contract (handbook) given to the student at the beginning of appellant's enrollment in the school," and were not a departure from any academic standards of which the Court was aware. Thus, the student's dismissal was proper, according to the court.

New study claims that Ohio schools show anti-gay bias

Although much attention has been focused on revision and enforcement of anti-bullying policies in Ohio, a new study claims that Ohio schools are doing a poor job at protecting GLBT students from bullying.

The study, done by Gay Lesbian Straight Education Network, reports some unfortunate statistics. Among them:

• 1 in 4 sexual minority students said they were physically assaulted - either punched, kicked or injured with a weapon - in the prior school year because of sexual orientation or gender identity. That is a higher than the national average of 18.8 percent.

• 1 in 3 such students said they were physically harassed - pushed or shoved - because of their orientation. Nationally the average was 40.1 percent.

• 70 percent said they were otherwise sexually harassed, 61 percent said they were "cyber-bullied," and 57 percent had property taken, stolen or damaged - all because of sexual or gender orientation, comparable to national statistics.

The complete article can be found at the Cincinnati Enquirer's website at http://news.cincinnati.com/article/20110714/NEWS0102/107150338/Study-Ohio-schools-show-anti-gay-climate?odyssey=tab|topnews|text|News.

Summit County appeals court reverses trial court in bus driver retaliation case

The Ninth District Court of Appeals, which covers Summit County, has reversed the decision of a Summit County Court of Common Pleas that excluded certain evidence in an employment discrimination case against Nordonia Hills School District.

In that case, a bus driver had been terminated in 1998, allegedly for refusing to park her bus where it would have blocked a handicap sidewalk cutout. She subsequently filed a lawsuit and won her case after a jury trial. However, the court of appeals reversed the judgment and granted the school district a new trial. Before the new trial could take place, though, the parties reached a settlement. The bus driver was subsequently reinstated to her position in 2000.

In 2005, the bus driver was terminated again. This time, the bus driver essentially alleged that the school district terminated her in 2005 in retaliation for the prior litigation. She argued that certain individuals within the school district resented the prior litigation and the settlement she obtained. Further, she asserted that those
individuals purposefully set out to construct a documented disciplinary record that could serve as a basis for termination, not because she was an unfit bus driver, but because they intended to retaliate against her for the 1998 litigation.

The trial court, however, excluded almost all evidence of the 1998 settlement. The court of appeals found that the bus driver should have been able to submit such evidence and thus reversed the court of appeals.

Court dismisses bullying lawsuit

A U.S. District Court Judge in northeast Ohio has dismissed a case brought against the Mentor School Board, Superintendent, high school principal, and others.

The lawsuit was brought on behalf of of a student who committed suicide, by his parents, alleging violations of the 14th Amendment to the United States Constitution. The complaint alleged that after months of persistent bullying in math class, the student shot himself. The school's failure to prevent this bullying violated the student's right to safety, and his parent's right to raise and educate their child in a safe environment, the complaint alleged.

U.S. District Court Judge Donald C. Nugent wrote "while it may seem that a
school, of all places, should provide a safe and supportive environment for the children in its care, neither party has cited any relevant law that would support a finding that the school was in a 'special relationship'" with the student to make the district liable for injury to the student. Furthermore, he wrote, "although it is
certainly reasonable for parents to expect that the school will do its best to protect their children while they are under the school’s supervision, the law does not elevate this expectation to a constitutional guarantee." Additionally, the court held, pursuant to federal precedent, that schools can only be held responsible for injury when they act affirmatively to put someone in danger, not for their failure to act.

Accordingly, the Judge dismissed the federal constitutional claims with prejudice (meaning that they cannot be brought again, absent a reversal on appeal) and dismissed the state law claims for negligence and bad faith, but left open the possibility that those claims could be brought in state court, if appropriate.

The ruling certainly has the potential to negatively impact, but not foreclose, school bullying lawsuits brought by students and their parents in Ohio. However, the court made clear that, at least as it stands now, generally, there is no special relationship between students and schools that would give rise to a constitutional right of protection to students. Whether or not the school acted affirmatively to cause the danger, however, will likely depend on the particular facts of each case.

Court sides with University in elevator injury case.

The 10th District Court of Appeals has upheld a decision of the Ohio Court of Claims in a case that pitted a construction worker against Cleveland State University.

In that case, a worker in a dormitory was injured when a faulty elevator that he was working in fell eight stories. At the time of his injury, the University had leased the dormitory to a developer. While the University admitted it owned the elevator, it denied that it did not have possession or control of the elevator at the time of the incident. Thus, ir argued, it was not liable for the injury.

The Court of Claims and the appeals court agreed.

Plain Dealer examines effect of Senate Bill 5 on school districts

The Cleveland Plain Dealer published an article this week that surveyed the effect Senate Bill 5 would have on school districts.

Among the most drastic changes for school personnel are the elimination of pension "pick ups," the elimination of binding arbitration, and the elimination of longevity pay and step increases.

Of course, opponents of SB 5 are mobilized, attempting to ensure that these changes never take effect, by putting the measure to the voters in the November 2011 general election.

That article can be accessed here: http://www.cleveland.com/open/index.ssf/2011/04/new_collective_bargaining_law.html

Supreme Court of Ohio dismisses parents' bullying case; case continues in federal court

The Supreme Court of Ohio unanimously dismissed a school bullying case yesterday that had been sent to it from a federal court in Cleveland.

That suit was filed by the parents of a Mentor high school student who committed suicide. The parents allege in their complaint that their son had been bullied for months at school, including by a student who told him the day before his death, "Why don't you go home and shoot yourself? Nobody would miss you." The parents allege that the student "endured harassment and bullying at school at the hands of numerous other students." He was also, according to the complaint, forced to endure "name-calling, teasing and verbal intimidation in one particular class and constant pushing, shoving and hitting both in class and in hallways of the high school. The name-calling was usually sexually themed."

The Supreme Court's dismissal of the case does not end the suit, however, which will now proceed in federal court.

"School Day Security and Anti-Bullying Act" introduced in Ohio House

Representative John Barnes, Jr. has introduced House Bill 116, or the "School Day Security and Anti-Bullying Act" for consideration by the Ohio House of Representatives. The proposed Act would require school districts to be more aggressive with their education efforts on anti-bullying policies.

Under current Ohio law, school districts are required to publish their bullying policy in the student handbook and include the policy in school employee training handbooks. Under this proposal, districts would be required to, twice in every school year, provide each student with age-appropriate instruction on the board's policies prohibiting harassment, intimidation, and bullying. The first instruction must be given toward the beginning of the school year and the second offered during the second semester. Additionally, the consequences for violations must be taught and an acknowledgment of receipt must be signed by the parent or guardian and returned to the school.

The bill does not change the definition of bullying under Ohio law, which defines that intimidation, harassment, or bullying as any of the following "(1) Any intentional written, verbal, or physical act that a student has exhibited toward another particular student more than once and the behavior both:

(a) Causes mental or physical harm to the other student;

(b) Is sufficiently severe, persistent, or pervasive that it creates an intimidating, threatening, or abusive educational environment for the other student.

(2) Violence within a dating relationship." R.C. 3313.666

Court upholds Board's decision to permanently revoke teacher's license

The Franklin County Court of Appeals this week upheld the State Board of Education's permanent revocation of a teacher's license.

In that case, two teachers had held a Christmas party in an area of a school buidling was not authorized to by the principal. Two students began boxing, with the knowledge of the teacher. One of the students was struck, was severely injured, and nearly died. The two teachers then allegedly concocted a story that they thought would keep them out of trouble. The teachers allegedly told students to lie to the principal if asked.

The principal then began an investigation. He interviewed students who were present during the Christmas party. The students stuck to the teachers' allegedly concocted story. Later, however, one of the teachers confessed the true story. However, the other teacher stuck to the original story. Both teachers later resigned, and an investigator in the Department's Office of Professional Conduct, Kelly Beall, was assigned to investigate the matter. As a result of Beall's investigation, the Board issued the teacher a notice of its intent to determine whether to limit, suspend, or revoke his teaching license.

Pursuant to R.C. 119.07, the State Board of Education must hold a hearing if a party requests it within 30 days of the mailing of a notice of intent. The notice of intent informed the teacher of his right to request a hearing, and it warned the teacher that if he did not exercise this right, the Board could suspend, limit, or revoke his teaching license in his absence.

After the hearing, the hearing officer determined that the inadequate supervision of students, among other things, amounted to conduct unbecoming to the teacher's position, and that the Board had grounds to sanction the teacher under R.C. 3319.31(B)(1) and Ohio Adm. Code 3301-73-22. The hearing examiner recommended that the Board revoke the teacher's teaching license and render him permanently ineligible to apply for any license issued by the Board. The Board adopted the hearing officer's recommendation. The teacher then appealed both to the Court of Common Pleas, and to the appeals court, both of which upheld the revocation.

Ohio school district to require students to undergo breathalyzer before entering school dance. Is it constitutional?

The Columbus Dispatch today is reporting that students at Medina High School, in Medina, Ohio, will have to take a breathalzyer test before attending the school's sweatheart dance. http://www.dispatch.com/live/content/local_news/stories/2011/01/27/27-Ohio-school-requires-breathalyzer-test-at-dances.html?sid=101

The new rule takes effect as a result of two students showing up drunk to the school's homecoming dance.

But is the school district permitted to take such a step under the U.S. Constitution? Maybe. Almost thirty years ago, the Ohio Attorney General issued an opinion that school boards may administer breath tests when students are suspected of having consumed alcoholic beverages. The board has to have found that such rules and regulations are ncessary to the effective management of their schools. 1983 OAG No. 012.

Nonetheless, such a policy must still conform to constitutional mandates, no matter what the Attorney General believes. If a particular student is reasonably believed to be under the influence, there seems to be not much doubt that a student could be required to undergo a breathalyzer. The odor of alcohol and impaired behavior may be enough to reach the "reasonable" standard in this context. See e.g. Martinez v. School Dist. No. 60, 852 P.2d

The more difficult question is can the test be required to ALL students before entering the school dance. The U.S. Supreme Court has upheld random, suspicionless drug testing of all students engaged in competitive extracurricular activities. However, courts generally require such testing policies set forth adequate safeguards to ensure reliability, privacy during testing, and confidentiality of results. See e.g. Crager v. Bd. of Educ., 313 F. Supp. 2d 690 (6th Cir. 2004). It seems likely that the breath-testing will be done in front of a number of people, including other students, and that the results will not remain private (students would be denied admission at the door). Furthermore, since high school students are not allowed to legally consume alcohol, the threat of prosecution may face those who test positive. However, the argument exists that extracurricular activities like school dances are voluntary affairs, and that the student's interests to be free from search and seizure are diminished.

In the end, there is no clear answer as to whether or not all students can be forced to undergo breath tests before entering the school dance. On a whole, when viewed in light of existing precedent, the case law seems to be on the side of the school district.

Student search by school official constitutional even if tip came from law enforcement, appeals court rules

A divided Fifth District Court of Appeals held today that the search of a student for drugs was constitutional, even though the school official who searched the student was given the tip by a law enforcement officer.

In that case, an assistant principal was given a tip by a deputy sheriff stationed inside the school that a student in the school may have been dealing heroin. The assistant principal then requested that the student come to the office with his bookbag. The assistant principal and the deputy sheriff both testified that the school official did so at the school official's sole request, and not at the behest of the deputy sheriff. During the search, drugs were found and the student was subsequently prosecuted.

The legal question to be answered by the court was what standard was required to justify the search. Generally, school officials can conduct searches when they believe that school rules and regulations have been violated, so long as the search is reasonable under the circumstances. This is a much more relaxed standard than the probable cause standard, which is generally required to conduct most searches.

The student had argued that, because the search was initiated as a result of the law enforcement officer tipping off the assistant principal, the probable cause standard should control. However, the prosecution argued, and the trial court held, that because the school official was working independently, and not at the behest of, the law enforcement officer, the reasonableness standard should prevail.

The Court of Appeals, 2-1, agreed with the trial court that the lower "reasonableness" standard should control. Because, in its opinion, the search was reasonable under the circumstances, the search of the student was constitutional.

The Fifth District Court of Appeals handles cases from Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas Counties.

Jury convicts woman accused of enrolling children in wrong district

The Akron Beacon Journal is reporting that a woman accused of enrolling her children in the wrong school district has been convicted of tampering with records, in violation of ORC 2913.42, a felony of the third degree. http://www.ohio.com/news/113828954.html. In what may be an unprecedented case brought by prosecutors, the woman could face five years in prison.

At the center of the case, prosecutors allege, was that the mother falsified official school registration forms to enroll her children in the Fairborn school district, even though she lived in city of Akron. Prosecutors also alleged that the woman was using her father's address in the scheme.

Prosecutors also had brought grand theft charges against the woman, saying she owed the District in excess of $30,000 for two years education in the District. The jury was unable to come to a verdict on those charges and a mistrial was declared on those charges.

School Board terminates teacher's contract, adopts referee's recommendation

The Mount Vernon School Board of Education voted this week to terminate the contract of a teacher accused of, among other things, violating school board policies, violating the U.S. Constitution, and teaching Christianity in class. In their 4-1 vote, the school board adopted the decision of the "referee" or hearing officer.

Pursuant to Ohio Revised Code 3319.16, public school teachers employed pursuant to a contract may only have that contract terminated for "good and just cause." Before such termination may take place, however, the school board has to give the teacher notice of intention, and an opportunity for a hearing in front of either the board, or a referee. Both parties may be present at such hearing, be represented by counsel, subpoena witnesses, require witnesses to be under oath, cross-examine witnesses, take a record of the proceedings. The referee must then furnish her report, recommending a termination or not. The board must then vote to adopt the report and recommendation or to reject it by majority vote.

The teacher affected then has the opportunity to appeal the case to the court of common pleas in which the school is located.