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.