Tuesday, May 26, 2009

Federal appeals court upholds dismissal of case of parents whose autistic son wandered off school grounds, found nude

The U.S. Court of Appeals for the Sixth Circuit, which covers Ohio, last week upheld a District Court's dismissal of a case brought by the parents of an autistic child who had wandered off school grounds and was found sometime later, nude and covered in mud. The matter is

The case was brought by David and Linda Parker and on behalf of their non-verbal autistic son, A.P. against the school principal, the school gym teacher, and the teacher's aide assigned to watch A.P. during gym class. While in gym class, A.P. wandered out of his afternoon gym class through an open gym door and out into the surrounding neighborhood. Upon discovering A.P.’s absence, the aide notified school officials, who initiated a search. With the help of local police, A.P. was found
several hours later, naked and covered in mud, a number of blocks away from school. The appeals court found that there was no evidence that A.P. was harmed during his absence from school and no evidence as to why he was not clothed when found.

A.P.’s parents then filed a lawsuit, alleging that in allowing him to wander
out of gym class the defendants had violated his substantive due process right “to be secure at school.” After discovery, the district court dismissed the matter because A.P. could not show the deprivation of a constitutional right. The appellate court held that A.P. had a right to "bodily integrity" under the Constitution, there was no evidence that right had been denied because though dirty and unclothed, there was no evidence of trauma or injury, be it physical or psychological.

Had A.P. suffered a physical or mental trauma, I believe the Court might have come to a different conclusion. Luckily for the school officials here, the Court did not find an injury had occurred.

Thursday, May 21, 2009

11th District Court of Appeals holds that board of education can be compelled to provide transportation for students

The Eleventh District Court of Appeals, in State ex rel. Luchette v. Pasquerilla, found that a court of common pleas may order a school district to provide transportation to a student when the Ohio State Board of Education has found that it is not impractical to do so.

The case involved a mother and her child who live in the Brookfield School District, but the child attends a a nonpublic school. In 2006, the Brookfield School District Board of Education passed a resolution, pursuant to R.C. 3327.02(A) and (B)(1), finding that transportation of the child was impractical. Under R.C. 3327.02(A)(3), the Trumbull County Educational Service Center review the decision and agreed with the school district, permitting the district to offer payment in lieu of transportation. The parents rejected payment and requested mediation by the Ohio Department of Education, as permitted by R.C. 3327.02(E)(1)(a). When mediation did not reach a resolution, a hearing was held, as required by R.C. 3327.02(E)(1)(b).

As a result of the hearing, the hearing officer recommended, and the state board approved, declining confirmation of the school district's impracticality decision. The recommendation found that the district only considered two of the six statutory factors in making its determination, among other findings. No one appealed the decision under R.C. 119.12. Nonetheless, the district refused to provide transportation.

The student sought an order from the Court of Common Pleas compelling the board to provide transportation. The Court of Common Pleas dismissed the case, finding the case improperly brought.

The Court of Appeals, however, ordered the school district to provide transportation and reversed and remanded the trial court's decision.

Friday, May 15, 2009

Greener Schools Bill Passes U.S. House

A $6.4 billion dollar moderization bill overwhelmingly passed yesterday in the United States House of Representatives. It now moves to the Senate for consideration.

According to the House Education and Labor Committee, the bill makes schools part of the effort to revive the economy and fight global warming by "creating clean energy jobs that will help put workers in hard-hit industries back to work."

Though critics charge that the measure is too costly and increases the role of the federal government in education, there are several benefits to greener school buildigns. These benefits include improving air and water quality, conserving natural resources, reducing operating costs and improving employee productivity.

The measure, if passed into law, would create an estimated 136,000 positions.

Friday, May 8, 2009

School Cyber-Bullying Measure Moves Forward in Ohio Senate

A bill sponsored by State Sen. Teresa Fedor (D-Toledo) moved one step closer to becoming law on Wednesday. Senate Bill 126 would impose a strict duty on school administrators to report various forms of student-on-student bullying. Specifically, it prohibits school administrators from knowingly failing to report to law enforcement authorities menacing by stalking or telecommunications harassment that occurs on school grounds; it requires boards of education to adopt policies prohibiting bullying by electronic means; requires school districts' harassment policy to address acts that occur off school property but that materially disrupt the educational environment of the school; requires a school district to provide yearly training on the district’s bullying policy for district employees and volunteers; and lastly, the Bill would require school districts to notify students' parents or guardians if the annual training is not completed.

Cyber-bullying includes the repeated use of the internet, cell phones, and other technology to harass, threaten, intimidate, spread rumors, or create a hostile online environment.

“Schools need to be pro-active in educating students and parents about responsible use of technology at school,” said Sen. Fedor.

If the bill becomes law, school administrators should expect to become more vigilant about their students’ cyber activities and interactions, including communications on social networking sites such as Myspace and Facebook, as well as text messages.

Thursday, May 7, 2009

Supreme Court clarifies “grounds for appeal” language in R.C. 119.12

The Supreme Court of Ohio today clarified that R.C. 119.12 requires a party appealing an administrative order or ruling by a state agency to identify in its notice of appeal one or more specific legal or factual errors in the order being appeal. The decision makes clear that the notice of appeal must include more than a restatement of the statutory standard of review for such orders.

The decision has implications for Ohio educators because, among other reasons, R.C. 119.12 may be used to appeal decisions of the Ohio Department of Education suspending or revoking a teacher or administrator’s licensure. The procedures contained in R.C. 119.12 may also be used by an educator to recoup his or her attorney’s fees after successfully defending him or herself in an ODE hearing.

It seems the caveat laid down by the Supreme Court today is, when appealing decisions of administrative agencies pursuant to R.C. 119.12, err on the side of more information than less. What might seem like a technicality could actually divest a court of jurisdiction to hear an appeal.

Wednesday, May 6, 2009

Supreme Court refuses to hear suspended teacher's appeal

The Supreme Court of Ohio today, in a 4-3 vote, declined to hear the appeal of a teacher who had her teaching licensed suspended by the Ohio State Board of Education for alleged violations of R.C. 3319.151(A).

At issue in the case was a teacher with 25 years teaching experience. In March 2006, she served as a proctor of the Ohio Achievement Test. During the reading test administration, the teacher created a practice worksheet for the math portion of the test. Certain questions on her practice worksheet requested that the student "solve for the value of X." Later, while flipping through the test booklet for another matter, she noticed the instruction in the test booklet, "solve for X." Believing instruction in the test booklet to be "much more clear" than her own instruction, the teacher changed the instructions on the practice worksheet to "solve for X."

Upon completion of the practice worksheet, the teacher distributed the worksheet to other teachers in her grade level, purportedly telling them to "not let the students take this home" and "destroy it when you are done." This made the other teachers uncomfortable and they did not believe that the distributing teacher was joking. Only one other teacher, besides the author, distributed the practice worksheet.

Later that same week, during the administration of the mathematics portion of the test, one of the teachers who had received the practice worksheet noticed similarities between some of the questions on the practice worksheet and some of the problems on the test. The teacher was questioned later by the school principal and the matter was picked up by the Ohio Department of Education.

The Ohio Department of Education gave the teacher notice that it intended to determine whether to suspend her teaching certificates. Pursuant to the Revised Code and the U.S. Constitution, the teacher elected to have a hearing on the matter.

As a result of the hearing, the hearing officer determined that the teacher violated R.C. 3319.151(A) by revealing to students a specific question known by the teacher to be part of an Ohio Achievement Test to be administered later that week. Specifically, the hearing officer found in his Report and Recommendation that three of ten questions on the practice worksheet were "significantly more similar" to, or almost identical, to questions on the actual Ohio Achievement Test. The hearing officer recommended the teacher's license be suspended for one year. The Ohio State Board of Education adopted, by resolution, the Report and Recommendation of the hearing officer.

The teacher appealed to the Court of Common Pleas, which found that there was substantial, reliable, and probative evidence to support the Board's decision to suspend the teacher's license.

The teacher appealed to the 11th District Court of Appeals, which upheld the decision of the trial court. The appeals court found that R.C. 3316.151(A) is violated not just by the verbatim revealing of specific questions, but also the revelation of questions "that the person knows is part of a test."

The Supreme Court's decision not to hear the case could signal that R.C. 3316.151(A) will be broadly construed. School teachers and administrators would be well-served by not looking at any portion of the Ohio Achievement Test and ensuring that any practice worksheets or tests that they create are made far in advance of the administration of the Ohio Achievement Test.

Tuesday, May 5, 2009

Cleveland Appeals Court upholds student's suspension

The Eight District Court of Appeals in Cleveland, Ohio recently upheld the suspension of two students who were suspended for allegedly fighting in Buckosh v. Westlake City Schools, 2009-Ohio-1093.

The student challenged the decision of the court of common pleas upholding the decision of the school board to suspend them. She made a few arguments to the appellate court, among them that her constitutional rights and statutory rights under R.C. 3319.66 to notice had been violated, that the trial court was wrong for not allowing her to argue self-defense and that the trial court was wrong in not giving her an opportunity to present more evidence.

The appellate court found that because, in its opinion, (1) the student had been provided with written notice of the charges against her, (2) the school district provide the reasons it was was suspending her, (3) the student had an opportunity to explain her actions, neither the U.S. Constitution or the Revised Code had been violated.

Additionally, the appeals court found that the student's rights to substantive due process were not violated when a student is denied an opportunity to present an affirmative defense of self-defense in a school suspension hearing.

Finally, because the student was unable to show that the result would have been any different if more evidence was brought before the trial court, the court of appeals upheld her suspension.

U.S. Supreme Court to decide student strip search case

Late last month, the U.S. Supreme Court heard oral arguments as to whether the strip search of a thirteen year old girl by school officials violated the United States Constitution. Whatever the justices decide, the decision will likely assist school districts across the nation craft search policies in tune with the Fourth Amendment.

Savana Redding was a thirteen year old honor student with no disciplinary record, when, on October 8, 2003, an assistant principal pulled her out of math class. Another student had accused Savana of giving her ibuprofen tablets, in violation of school policies. For reference, each tablet at issue was as strong as two Advil.

Two female school employees demanded that the girl strip down to her undergarments. They then forced her to pull open her bra, open her legs, and move her panties so that they could thoroughly search her. The search yielded nothing.

Savana's mother later instituted a lawsuit in the U.S. District Court alleging a violation of her daughter's Fourth Amendment rights to be free from unreasonable searches and seizures. The Ninth Circuit Court of Appeals sided with her, concluding that "[i]t does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights. More than that, it is a violation of any known principle of human dignity."

The last time the Supreme Court addressed the search of an individual student on school grounds was in New Jersey v. T.L.O. There, the Court held, that school officials do not need a warrant to search the belongings of students, but they do require "reasonable suspicion," which is a lower standard than probable cause. Reasonableness was based on (1) whether the search was justified at its inception and (2) whether the search conducted reasonably related in scope to circumstances that justified it in the first place.

Thus, the question seems to be whether one student's tip that another student had given her drugs, without more, justifies an intimate search of a person's body. If it does, the question becomes whether the search of a student's undergarments and nude body to find the ibuprofen was reasonably related in scope to the anonymous tip.

Expect to have a decision in the next month that will hopefully answer these questions so that school administrators can be clear about the rules governing them and students can be clear about what can be done to them.

Former School Librarian's Denial of Disability Upheld

The Supreme Court of Ohio, in a 5-2 decision, upheld the decision of the 10th District Court of Appeals, denying a request that State Teachers Retirement Board reinstate a former librarian's disability-retirement benefits.

The former junior high librarian applied to the STRS for disability-retirement in December 1987. Her attending physician diagnosed her with having chronic systemic viral syndrome and certified that she was, at least temporarily, incapacitated from her performance as a teacher. Additional examinations, requested by STRS, confirmed she was disabled. Thus, she was granted disability retirement in 1988.

Seventeen years later, in 2005, the retirement board requested the librarian's treating physician provide a report on her medical status. The treating physician noted her diagnosis of chronic fatigue syndrome and fibromyalgia; the doctor also noted that the librarian suffered from fatigue, muscle and joint pain, swollen glands, and a low-grade fever.

Again, the STRS retirement board ordered another physician to examine the librarian to determine whether her disability should be continued. While not disagreeing with any of the librarian's treating physician's diagnoses, the STRS physician concluded the librarian was not disabled because of her lack of objective abnormalities. The STRS physician certified that the librarian was capable of resuming regular full-time service similar to that from which she had retired and that disability benefits should cease. A recomendation was then made that the librarian's benefits should cease.

In response, the librarian was evaluated by another physician who again affirmed her treating physician's diagnosis. This physician went on to note that chronic fatigue syndrome was incapable of objective quantification.

The STRS physician, again not disagreeing with the librarian's physician, concluded that based on objective abnormalities, the librarian should return to work. As a result of the STRS physician's recommendations, the librarian's benefits were terminated.

The Supreme Court, in affirming the decision of the Court of Appeals below, held that the decision to terminate the librarian's benefits was not unreasonable, arbitrary, or unconscionable. The Court found that the STRS could propertly consider the librarian's lack of objective abnormalities in finding she was not disabled.

The case should be cited State ex rel. Morgan v. State Teachers Retirement Bd. of Ohio,
121 Ohio St.3d 324