Tenured professor provided due process, 6th Circuit rules

A unanimous three-judge panel of the federal 6th Circuit Court of Appeals has determined that a university professor was provided the due process he was entitled to under the U.S. Constitution, despite his claims to the contrary. In that case, the professor had been employed by the university's Political Science Department for a period of almost thirty years. At some point, as a result of a dispute between the professor and the university, the two parties entered into an agreement wherein the professor agreed to abide by certain expectations. The agreement further provided that the professor's compliance with the agreement would be adjudged by a panel of three faculty members; one faculty member was to be chosen by the Dean, one by the faculty chair, and one by the professor himself. Within a year of entering into the agreement, the professor was accused of violating the agreement. A three person faculty committee was then formed. After a 'hearing,' the professor was terminated. The professor instituted suit in the U.S. District Court, alleging violations of the 14th Amendment, including procedural and substantive due process. The district court refused, however, to find a violation and found against the professor. This holding was upheld today on appeal by the 6th Circuit. The case is McKenna v. Bowling Green State University, Case No. No. 13-4054.

Lucas County Court of Appeals holds that charter school management company and employees not immune from liability

The Court of Appeals for the Sixth Appellate District in Ohio has ruled that while a charter school itself is immune from most lawsuits as a political subdivision, a charter school's management company is not. In that case, a minor was injured at the school and sued the charter school management company, as well as an employee of that company. The management company alleged that it, like the charter school, was immune from liability as a political subdivision. The trial court ruled that the company was not immune from suit and the appeals court agreed. The case is Cunningham v. Star Academy of Toledo, 2014-Ohio-428.

U.S. Supreme Court refuses to hear "I heart boobies" appeal.

The Supreme Court of the United States allowed a lower court decision to stand this week, upholding the right of students to wear "I ♥ Boobies" bracelets for breast cancer awareness. In that case, Pennsylvania middle school students had been suspended for wearing the breast cancer awareness bracelets. The school, citing the Supreme Court's 1986 decision in Bethel School District v. Fraser, believed that they had the ability to ban this speech as being lewd, vulgar, and inappropriate. The decision not to take the case is not a decision on the merits but may be instructive to public school students and administration alike to help further clarify what speech is and is not constitutionally permissible inside the schoolhouse gates.

Supreme Court of Ohio upholds teacher's firing for "his refusal to eliminate religious symbols from the classroom – excluding a Bible."

In the latest chapter in a several years long case, the Supreme Court of Ohio has determined that the firing of a teacher by the Mount Vernon City School District Board of Education was valid. The question before the Supreme Court was whether "whether the evidence was sufficient to demonstrate that [the district] terminated [the teacher] for insubordination in refusing to remove religious displays in his classroom after being told to do so, and for continuing to inject his personal religious beliefs into his plan and pattern of instruction, thereby exceeding the bounds of the school district’s bylaws and policies, even after being forbidden to do so." The school district alleged that the teacher injected his own Christian faith into his classroom as early as 1994 and continued to do so right up until he was relieved of his teaching duties and that after the district denied the teacher's 2003 teaching proposal to critically evaluate evolution, the teacher surreptitiously supplemented his eighth-grade science curriculum with, religious handouts, showed videos on creationism and intelligent design, displayed religious materials in his classroom, and made various statements in class referring to the Bible. Conversely, the teacher argued that argues that the board violated his right to academic freedom pursuant to the First Amendment to the United States Constitution when it terminated him based on the content or viewpoint of his curriculum-related academic discussions with students and his use of supplemental academic materials. Evaluating the claim in the context of only R.C. 3319.16, which governs the termination of teacher contracts in Ohio, the Court sided with the school district, finding "ample" evidence to terminate the teacher. The case is Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., Slip Opinion No. 2013-Ohio-5000.

State university not liable for hockey puck injury, court of claims rules

Miami University is not liable for a woman's $200 deductible, the Ohio Court of Claims has ruled, in a case where she was injured by a flying hockey puck. The Court said that, “[t]here is no obligation on the part of the operator of a hockey game such as M.U. to protect a spectator against being hit by a flying puck ... Evidence has shown defendant did take measures by erecting glass and boards around the perimeter of the Ice Arena to provide some safety to spectators from errant pucks. Nevertheless, pucks do enter the stands; an inherent risk in the game of hockey, which is common, expected, and frequent,” the court said. “Consequently, plaintiff’s claim is denied since defendant owed her no duty to protect her from the known danger presented.” The court applied the legal doctrine of primary assumption of the risk. The woman had argued that because the injury occurred before the game began, this doctrine did not apply. The court ruled otherwise. The decision may be found here:

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

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

Court clarifies standard for student cell phone search

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

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

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

Court affirms firing of administrator for writing op-ed piece

The U.S. Sixth Circuit Court of Appeals has affirmed the dismissal of a former administrator at the University of Toledo, finding that her writing 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.

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.