Read the September 2011 issue of Court Report, which includes such topics as state-agent immunity, hearing officer authority and city council authority. Click the links to read more about the cases. This newsletter is an ACSBA member benefit.

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September 2011 Issue of Court Report

Alabama Supreme Court

• Sexual Assault/State-Agent Immunity 

April 2010 and again in September 2010. The board eliminated the employee’s position in a reduction in force. The hearing officer reversed the termination on the grounds that the board did not follow its RIF policy, but the Court of Civil Appeals disagreed and ordered the hearing officer to reconsider his decision in light of the Court’s ruling. (Long I). The hearing officer scheduled a new hearing, but the board argued that no new hearing was required. The case went back to the Court of Civil Appeals for clarification of its order. The Court responded that the hearing officer should not hold a new hearing, but rather should issue a ruling in favor of the board. (Long II). At that point, the board cut off the employee’s pay. Months later, the hearing officer entered an order in favor of the board as the Court demanded, but also awarded the employee back pay, stating that the board had prematurely cut the employee’s pay prior to the hearing officer entering an order in favor of the board. The case again went back to the Court of Civil Appeals on the question of whether the hearing officer had the authority to award backpay for that interim time period. The Court held that pay could have been cut off after Long I when it ordered the hearing officer enter an order in favor of the board. At that point, the hearing officer had no choice but to rule in favor of the board, irrespective of when the actual order was entered. Because the hearing officer lacked authority to award back payment, the Court of Civil Appeals ruled in favor of the board.

 

• City Council Authority

Council of the City of Phenix City v. Phenix City Board of Education, 2011 WL 3862985 (Ala.Civ.App. Sept. 2, 2011)

The board is appointed by the city council. The council appointed a committee to investigate the board and sent a letter to the board and superintendent to turn over certain documents and information. The board did not produce the information and the committee subsequently issued a subpoena for the requested information. The board filed suit seeking to block the subpoena and the trial court issued a restraining order against the city holding that it did not have the authority to subpoena the board’s records. The council appealed. 

The city’s charter gives it authority to inquire of any entity of the city, including board members as “officers” of the city, and to investigate municipal affairs. The city relied upon Day v. Andrews, 188 So.2d 523 (1966) which held that city officials could not oust members of a city board of education. Rather, they are officers of the city and could only be removed by the impeachment provisions in the Alabama Constitution. The court rejected the Day holding that board of education members are city officers. It held that the city board of education is an independent agency that is not a subdivision of the city. However, the court agreed with the city that the board of education involved “municipal affairs," a term not defined in Alabama case law. The court noted that the city appoints the members of the board, that the law dictates that lawsuits filed against a city board are brought in the name of the city, that a city board can petition the city for the issuance of bonds to fund the school system and that city boards are closely related to the city. Therefore, the subpoena was valid under the city’s authority to investigate municipal affairs. The board will appeal this ruling and AASB’s Legal Assistance Fund will participate in the appeal.

 

U.S. District Court

• Payroll deductions

Alabama Education Association v. Bentley, 2011 WL 1484077 (N.D.Ala. Mar. 18, 2011)

During the December 2010 special session, the legislature passed a law making it illegal for public employees to make payments to political action committees and/or pay membership dues to political organizations by payroll deduction. AEA and others filed suit against the governor and other government officials claiming that the statute is unconstitutional. They also sought a preliminary injunction and temporary restraining order to block the law from taking effect.

The court granted the preliminary injunction, holding that the plaintiffs could show a substantial likelihood that they would eventually succeed on the merits. The plaintiffs’ first argument was that the statute constitutes viewpoint discrimination by not prohibiting payroll deductions from all organizations and therefore violated the First Amendment. The second argument was that it was void for vagueness because the definition of “political activity” is too vague and because it prohibited dues by salary deduction “or otherwise”. Again, the court agreed.

Based on the United States Supreme Court holding in Ysursa v. Pocatello Education Association, 555 U.S. 353 (2009), which upheld a similar statute in Idaho, the court initially believed the Alabama statute would likewise pass constitutional muster. Upon further review, the court determined that the Alabama statute went much farther and that there was a substantial likelihood the plaintiffs would succeed on the merits.

After the court issued the preliminary injunction, the state defendants appealed to the Eleventh Circuit Court of Appeals asking that the preliminary injunction be vacated. The Eleventh Circuit declined to reverse the injunction and the case will now proceed on the merits through the district court.

 

• Student Discipline/IDEA

Jefferson County Board of Education v. S.B., 2011 WL 2160937 (N.D.Ala. May 26, 2011)

J.B. was a student receiving services under the Individuals with Disabilities Education Act (“IDEA”). He was expelled from school for one year, and eventually, the school agreed to pay the cost of placing him at a private school. J.B. apparently thrived at the school, and at his mother’s request, the school agreed to allow J.B. to continue receiving services at the private school beyond the one year term.

Eventually, J.B.’s mother contacted the high school and asked if J.B. could participate in high school graduation even though he was attending the private school. After the school refused, J.B.’s mother claimed that the school was violating his rights under the IDEA. The district argued that J.B. had been expelled, had not attended the school for over a year and a half, that his presence could be disruptive and that allowing him to participate would send the wrong message. A hearing officer determined that participation in graduation was an extracurricular activity and part of J.B.’s free and appropriate public education (“FAPE”).

The board filed an emergency petition to prevent J.B.’s participation in graduation. It argued that graduation was not a part of FAPE. The court noted that the IDEA does not mention graduation ceremonies, and held that barring a student from participating in graduation was not a denial of FAPE. Additionally, because the denial was based on a disciplinary action for bringing a gun to school--an act that was not a manifestation of his disability--barring him from the ceremony was not disability discrimination. The school treated him as it would have any other student. The IDEA requires disabled students receive equal, not superior, access to their non-disabled classmates.

Therefore, the court overturned the hearing officer’s order that J.B. be allowed to participate in the graduation ceremony.

 

• Americans with Disabilities Act

Gordon v. Board of School Commissioners of Mobile County, 2011 WL 773033 (S.D.Ala. Mar. 1, 2011)

The plaintiff was employed by the board as a principal. He was injured trying to restrain a violent student, and as a result, was out of work from September 2006 through the end of the school year eight months later. His physicians indicated that he could return to light duty work only and could not be involved in physical altercations or he would risk further injury. The principal requested a security guard to assist him in discipline. That request, which he had made repeatedly for years before his injury, was denied because the board employed a resource officer who could assist with discipline on an as needed basis. The principal subsequently had a meeting with his supervisor and other administrators. The administrators expressed concern about how the principal could perform his duties in light of his health problems. Eventually, he was told not to report back to work until he could “come back 100 percent.” Rather than explore his potential reassignment options with human resources, he went to his doctors and asked for a full medical release, but they refused. The principal felt he had no other option but to seek disability retirement. His retirement was subsequently approved.

The plaintiff then filed suit claiming the board failed to provide him reasonable accommodation, failed to engage in the interactive process and took an adverse employment action against him by forbidding him to work without a full medical release. To establish an ADA claim, the plaintiff has to prove that he is disabled, is qualified and was discriminated against because of his disability. The court found that the plaintiff was not disabled because his impairment did not “substantially limit” any major life activity. He could not establish that he was in “constant pain” as he claimed, that he had any more difficulty sleeping than the average adult, and that his inability to bend down and tie his shoes was a major life activity. The court further noted that the bulk of his evidence related to his present condition rather than his condition at the time of the employment action. Therefore, because the employee could not establish that he was disabled, the court entered judgment in favor of the board.

 

Attorney General Opinions

• Athletics

A.G. Op. No. 2011-088

In 2011, the Legislature passed an act which requires the “governing body of each sport or recreational organization” to develop guidelines, information and forms to educate parents and youth athletes on the dangers of concussions. The law also requires the body ensure coaches receive certain training on how to recognize and handle concussions. This opinion answered whether the term “governing body of each sport or recreational organization” includes schools and athletic organizations that sponsor and hold school athletic events.

The opinion first notes that the term “governing body of each sport or recreational organization” refers to both recreational and interscholastic organizations, which would include the Alabama High School Athletic Association.

Individual schools and school systems are not generally considered a “governing body of a sport or recreational organization”, and therefore would not be subject to the act, unless the school or system sponsors an athletic program, holds a school sponsored athletic event or assumes a governing capacity over a sport or activity (e.g. a school-sponsored intramural basketball tournament). If the school or system engages in any of those activities, the provisions of the act apply.

 

Matter of Interest

• Immigration

Act 2011-535

In 2011, the Legislature passed Act 2011-535 which has been called the toughest immigration law in the country. A portion of that act would have a direct impact on schools by requiring local boards of education to collect data on students who cannot establish proof of citizenship. Three lawsuits challenging the law were filed in federal court. In late August, District Court Judge Sharon Blackburn issued a temporary injunction which blocked the law from taking effect on September 1, 2011 while she considers the legality of the act. You can read more about this issue in the next issue of Alabama School Boards Magazine.

 

— Jayne Harrell Williams

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

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