September 2010

Alabama Court of Civil Appeals

• Fair Dismissal Act/Duties on Remand
  

Ex parte Mobile County Board of School Commissioners, --- So.3d ---, 2010 WL 3196266 (Ala.Civ.App. Aug. 13, 2010)

We first reported on this case in the April 2010 edition of Court Report. The board implemented a reduction in force which eliminated the employee’s position. The employee claimed that the board failed to follow its RIF policy in selecting him for termination because there was a probationary employee holding a position that the plaintiff could have assumed. The board argued that the employee was not qualified to hold the other position. The hearing officer reversed the termination on the grounds that the board failed to properly apply the RIF policy and the board appealed to the Court of Civil Appeals.

In its first opinion, the court held that the board complied with its RIF policy when it selected the employee for termination and the employee failed to offer evidence that he was qualified for the position held by the probationary employee. Accordingly, the court returned the matter to the hearing officer “for further proceedings consistent with” its opinion. Mobile County Bd. of School Comm’rs v. Long, 2010 WL 876717 (Ala.Civ.App. Mar. 12, 2010).

After the matter was remanded to the hearing officer, the board and the employee could not agree on whether the hearing officer could hold a new hearing. The hearing officer opted to hold a new hearing to consider whether the board properly terminated the employee. In response, the board filed a petition with the Court of Civil Appeals requesting an order that the hearing officer forego holding a new hearing and rule in favor of the board.

The court first noted the language of the Fair Dismissal Act which said that the court may order a new hearing if it overturns the hearing officer’s decision. The court then looked to its original opinion to determine what it intended the hearing officer to do. The court noted that it specifically held that the hearing officer was incorrect in his finding that the board violated its RIF policy in its first opinion. The court continued, “[b]y using the term ‘further proceedings,’ this court directed, albeit somewhat imprecisely, the hearing officer to issue a decision in favor of the Board.” Accordingly, the court granted the board’s petition and ordered the hearing officer to decide in the board’s favor without having a new hearing.

Eleventh Circuit Court of Appeals

• Right to Public Education/Discipline
  

Anderson v. Hillsborough County School Board, 2010 WL 3010298 (11th Cir. Aug. 3, 2010)

This case was filed by a Florida high school student against her local school board. Shortly before the end of the school year, the student was suspended for fighting and assaulting her assistant principal. The board subsequently decided to place the student in alternative school rather than permit her to return to her regular school. The student claimed the board violated her constitutional right to a public education when it reassigned her to an alternative school. The district court dismissed the case and the student appealed.

The 11th Circuit first noted that there is no federally recognized constitutional right to public education, but that Florida’s constitution does provide such a right. Therefore, that right was entitled to 14th Amendment protection. However, students have no right to attend the high school of their choice. Further, the 11th Circuit agreed with the district court that the student was provided due process before her suspension and later reassignment to alternative school. Accordingly, the 11th Circuit upheld the dismissal of the case.

United States District Court

• Failure to Protect/Student Assault on Teacher

May v. Mobile County Public School System, 2010 WL 3039181 (S.D.Ala. Jul. 13, 2010)

This case involved a special education teacher and a special education student with significant and documented behavior problems. The teacher, who was assigned as the student’s case manager, was hit, kicked, bitten and knocked to the floor by the student as she escorted him down the hallway with the principal. The teacher filed suit against the board, the superintendent and her principal alleging that they failed to protect her from being physically assaulted by the student in violation of her constitutional rights. Specifically, she claimed that the defendants were aware of the student’s violent propensities and failed to remove him from school, failed to train her how to handle the student and failed to otherwise protect her despite multiple previous incidents involving the student. The defendants claimed they were entitled to qualified immunity and asked that the case be dismissed.

The court first noted that the Constitution only protects citizens from wrongful state acts. It does not require the state to protect citizens from the acts of third parties unless a special relationship exists between the citizen and the state or the state’s behavior shocks the conscience. An example of a special relationship is someone in the state’s custody, such as a prisoner. The U.S.  Supreme Court has already held that voluntary employment relationships like the teacher had with the board were not special relationships which triggered the state’s duty to protect the employee. Collins v. City of Harker Heights, 503 U.S. 115 (1992). However, the teacher claimed that she did have a special relationship because the student’s individualized education plan (IEP) placed certain requirements upon her by which she had to abide, effectively rendering her a person in custody. The court rejected this argument noting in Collins, the court held that even the fact that an employee could lose her job for declining to participate in some unsafe workplace condition did not convert the relationship into a custodial relationship.

As to the teacher’s claims that the defendants’ behavior shocked the conscience, the court noted that the teacher had to demonstrate more than simple negligence or even an intentional wrong to reach that threshold. While the court sympathized with the teacher for her injuries, she suffered no violation of her constitutional rights in this case. Accordingly, the court dismissed the teacher’s claims against all defendants.

Attorney General Opinions

• A.G. Op. No. 2010-089

The Alabama School of Fine Arts requested an opinion regarding whether it could use money from students and other non-state sources to purchase meals for students participating in extracurricular activities. For example, if the students went on a field trip, could the school use money collected for the trip to purchase box lunches? The Attorney General noted that the school had the authority to accept public or private funds for any educational purpose, a term which has been interpreted broadly by the courts. Accordingly, as long as the school determines that the purchase of such meals serves an educational purpose, the purchases are allowed.

Matter of Interest

• Payroll Deductions

On August 27, 2010, the State Comptroller issued a directive to several state agencies advising that AEA “dues will no longer be withheld from employees’ pay effective September 1, 2010.”  This directive was issued as a result of a state law which prohibits government property from being used to promote political activities. Because AEA dues include contributions for its PAC, the comptroller ordered that “payroll deductions for these dues must be stopped.” Similar directives have been issued recently which impact the Alabama State Employees Association as well as the Alabama State Troopers Association.

— Jayne Harrell Williams

Jayne is a shareholder with the law firm of
Hill, Hill, Carter, Franco, Cole & Black in Montgomery, Ala.

info@alabamaschoolboards.org

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