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.

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.