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 of 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 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 disability discrimination 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 Univ., 693 F.3d 654 (6th Cir. 2012).

Federal Court agrees that doctoral student was given due process

The 6th Circuit Court of Appeals, this week, upheld the decision of the U.S. District Court for the Eastern District of Michigan, which granted summary judgment to Wayne State University and Wayne State officials. In that case, a doctoral student sued school officials after having her doctoral degree revoked. The university accused the student of plagarizing portions of her doctoral thesis. The student had argued, among other things, that school officials have violated the 14th Amendment's due process clause by (1) not providing her sufficient notice that her degree could be revoked or (2) that the procedures utilized by the University were inadequate. Both the district court and the court of appeals disagreed with the student.

Youngstown appeals court sides with private school in bullying, breach of contract case

The Seventh District Court of Appeals of Ohio has affirmed a trial court decision on summary motion in a case brought by a former student against a Catholic school. In that case, a student at a private school alleged that she was being bullied and harassed for two school years as a member of the varsity tennis team. As a result of the allegations, the parents withdrew the student from the private school. Subsequently, the parents filed a complaint asserting causes of action causes of for breach of contract, implied duty of good faith and fair dealings, breach of fiduciary duty, negligence, intentional infliction of emotional distress, negligent supervision, and civil conspiracy. Furthermore, the complaint alleged that the student was intimidated, harassed, isolated, treated unfairly and bullied by the Girls Tennis Team, the Coach Ketchem and the administration of the private high school. They contended that the high school handbook and policies, which allegedly set forth a no harassment/bullying policy, created a contract between the high school and the student. The plaintiffs asserted that the high school breached that contract by allowing the student to be harassed and bullied. The trial court, in adopting the decision of the magistrate below, found that the school did not engage in any type of conduct that could be considered a breach of contract. Specifically, the conduct complained of did not support the claims of harassment and/or intimidation as alleged by the plaintiffs and that the plaintiffs failed to demonstrate the existence of a fiduciary relationship between the student and the school. As to the negligence, negligent supervision, emotional distress and civil conspiracy claims, the magistrate held that even when construing the evidence most strongly in favor of the plaintiffs, the record was devoid of evidence which could cause a reasonable person to believe that the school was negligent in their conduct concerning the student and her parents. The parents timely appealed the decision. The court of appeals affirmed. Notabely, the appeals court starts off by recognizing that some Ohio courts have found that a private school handbook may create a contract between the student and the private school. However, the appeals court declined to answer whether or not this particular handbook constituted a contract.

Court of Appeals reverses student's expulsion due to school board error

The Fourth District Court of Appeals this week has reversed a school board's decision to expel a student because the school board failed hold a hearing within the time limits contained in R.C. 3313.66(B)(6), among other reasons. In November 2009, a student allegedly attacked another student. The Superintendent notified the student that she may be expelled and subsequently held a hearing at the student's request, but did so outside the time frame provided in the Ohio Revised Code. Nonetheless, the Superintendent and School Board decided to expel the student. Because the hearing in front of the Superintendent took place outside the statutory time frame, and for other reasons, the trial court reversed the decision of the school board and ruled that the student must be reinstated. The appeals court upheld the decision of the trial court. This case highlights the importance that parents and students be cognizant about both procedural and substantive rights that they have when dealing with a public school disciplinary issue, and would be well advised to seek counsel as soon as practical.

6th Circuit sides with parents in IEP dispute

The United States Court of Appeals for the 6th Circuit, which covers Ohio, has reversed the decision of a U.S. District Court in Kentucky to dismiss a parents' claims under IDEA and 504 of the Rehabilitation Act. In that case, the parents filed a due process complaint alleging, among other things, that their son's IEP, implemented in 2004, was inadequate because he was not receiving certain services. A hearing was held and the hearing officer agreed with the school district in some respects, but found that the 2004 IEP was, as the parents suggested, inadequate. The hearing officer also found that the school district should have to reimburse the parents for certain tutoring expenses incurred as a result of the state's failure to provide the student a Free Appropriate Public Education (FAPE). The school appealed the decision to Kentucky's Exceptional Children Appeals' Board (ECAB) that the district had not been given proper notice that the complaint included a charge that the child was not receiving proper services under the 2004 IEP. The ECAB agreed, and reversed the hearing officer. The parents then filed a lawsuit, requesting the hearing officer's decision stand, and also alleging that the school district had violated the child's rights under 504 of the Rehabilitation Act. The district court found in favor of the parents, reversing the ECAB regarding the notice issue, but dismissed the 504 claim. Both parties appealed. Finding that the school district did have proper notice, the 6th Circuit affirmed the district court's opinion as to that count. However, the appeals court found that the district court committed error with respect to dismissing the rest of the IEP and 504 claims and sent the case back to the district court for further proceedings. It is important to note, as the appeals court did here, that the complaint was filed when the child was in 6th grade. He is now getting ready to graduate high school.

Administrators must be given notice, meeting, Supreme Court rules

The Supreme Court of Ohio ruled today, in a 7-0 opinion, that the failure of a School Board to grant the request of a grade school principal for a meeting with the board prior to the board’s vote not to renew her contract was a violation of state law that invalidates the board’s nonrenewal vote and requires her reemployment. In that case, an elementary school principal entered into an administrative contract with the School District to serve as a principal for the 2006-2007 and 2007-2008 school years. In May 2007, during her first year as principal, she was placed on paid administrative leave for the remaining term of her contract based on school employees’ allegations that she had tampered with Ohio Achievement Test answer sheets that had been completed by students at the school. In June or July 2007, the principal was orally advised by an assistant district superintendent that her contract would not be renewed when it expired in the summer of 2008. At the time of that notification, the principal orally informed the assistant superintendent that she wanted to meet with the district school board prior to any final board action on the nonrenewal of her contract. Despite the principal's request, at a regularly scheduled school board meeting on March 17, 2008, without advance notice to the principal that her contact would be considered at that meeting and without a prior meeting with her to discuss its reasons for nonrenewal, the board voted not to renew her contract. Subsequently, the Ohio Department of Education determined that there was no evidence that any tests had been altered or that the principal altered any tests. The principal then filed a lawsuit, arguing R.C. 3319.02(D)(4), requires that, before a school board takes action to renew or non-renew the contract of a public school administrator, if the administrator requests a meeting with the board, the board “shall grant a meeting in executive session,” at which the board “shall discuss its reasons for considering renewal or nonrenewal of the contract.” R.C. 3319.02(D)(5) provides that if a school board “fails to provide at the request of the employee a meeting as prescribed in division D(4) of this section, the employee automatically shall be reemployed ...” The Supreme Court unanimously reversed both the trial court and the court of appeals. The case is State ex rel. Carna v. Teays Valley Local School Dist. Bd. of Edn., 131 Ohio St.3d 478, 2012-Ohio-1484.

Supreme Court holds that public employees may sue employers for intentional torts

The Supreme Court of Ohio held today that when an employee of a political subdivision brings a civil lawsuit against the subdivision alleging an intentional tort, such as defamation, assault, battery, or other delibertte act, that lawsuit may proceed, and an employer may be liable for such. Further, the court's decision finds that an employee’s suit “arises out of the employment relationship” if there is a causal connection or relationship between the claims raised by the employee and the employment relationship.

The decision helps clarify the liablity of, among others, school districts for suits brought against them by employees.

Sixth Circuit reinstates graduate student's lawsuit based on student's refusal to counsel gay men and women on their same sex relationships

The U.S. Sixth Circuit Court of Appeals has reinstated the lawsuit of a graduate student at Eastern Michigan University (EMU) that had been dismissed by the District Court over her disagreement over counseling gay clients.

In that case, Eastern Michigan University prohibited its counseling students from discriminating against others based on sexual orientation and taught students to affirm a client’s values during counseling sessions. A graduate student in school counseling had consistently clashed with her professors regarding her purportedly held Christian beliefs that prohibited her from affirming same sex relationships (and heterosexual conduct like extra-marital relationships). Despite this ongoing dispute, the graduate student did well in the program and continued towards her degree.

Towards the end of her program, the student, who had a 3.91 GPA, was asked to counsel a gay client. The graduate student asked that the gay client be referred to another counselor based on her beliefs. The client was referred to another counselor and disciplinary action was taken against the graduate student. She was, in fact, dismissed from the program.

The graduate student subsequently filed a lawsuit against the university, claiming an infringement of her First and Fourteenth Amendment rights. The District Court dismissed the case on summary judgment. The graduate student appealed.

While recognizing that universities have discretion in curriculum choices, the Sixth Circuit determined that a reasonable jury could have found, when the facts were viewed most favorably towards the graduate student, that it was error for the university to have a no referral policy, as the same could have violated the graduate student's constitutional rights.

This does not mean that the graduate student wins the case. Rather, it just means that the matter can proceed to a jury trial.