Read the September 2015 issue of Court Report, which includes such topics as the Students First Act, hearing officer authority, and Title IX-sexual assault. This newsletter is an ACSBA member benefit .

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Alabama Supreme Court 

• Students First Act – Hearing Officer Authority

Ex parte Lambert, -- So.3d --, 2015 WL 5086453 (Ala. Aug. 28, 2015)

We last reported on this case in the December 2013 edition of Court Report. As explained in our previous report on Lambert v. Escambia County Board of Education, 2013 WL 5583739 (Ala. Oct. 11, 2013), the superintendent recommended the employee’s termination after a loaded handgun was found in a bag in his office. The employee argued that he had inadvertently brought the gun on campus. While the employee had no disciplinary history, the board had a policy that possession of weapons on school property would lead to suspension or termination.

After a hearing was held, the board upheld the superintendent’s recommendation and terminated the employee. The employee appealed to a hearing officer who expressed that he believed a lesser punishment was warranted. Nevertheless, in light of his duty to give deference to the board’s decision and in light of the limitation upon his authority to only reverse or uphold the board’s decision, he upheld the termination. The employee appealed to the Court of Civil Appealswhich affirmed the hearing officer’s decision.

The employee then appealed that decision to the Alabama Supreme Court. Following oral arguments, the Court issued a mixed decision. In a 4-3-2 split decision, the Alabama Supreme Court agreed with post-Students First Act decisions which have held that the hearing officer must show "extreme deference" to the board's decision, also referred to as the"arbitrary and capricious standard of review". The Court recognized that in repealing the former Teacher Tenure Act and Fair Dismissal Act, the legislature intended to return decision-making authority for school employees to boards and to eliminate cumbersome litigation. Then, despite its holding that hearing officers must apply an extremely deferential standard of review, it decided in the very last sentences of the opinion that the hearing officer has the authority to order a board to reduce its decision to terminate.

With that holding, the Court reversed and remanded the case back to the hearing officer to consider whether the decision to terminate was arbitrary and capricious. Because this holding was in direct contradiction to the plain language of the law that the hearing officer can only affirm or reverse the board's decision and in light of the potentially negativeimpact this split decision could have on boards across the state, the board will file an application for rehearing on the narrow issue of authority to remand. The AASB Legal Assistance Fund is participating in this appeal as amicus curiae.

Eleventh Circuit

• Title IX – Sexual Assault

Hill v. Cundiff, -- F.3d. --, 2015 WL 4747048 (11th Cir. Aug. 12, 2015)

This case involved a student-on-student rape and has unfortunately become known as the “rape bait” case. The facts are largely in dispute, but the summarized facts are based on the Court’s opinion. A 14-year-old female student complained to school officials that a 15-year-old male student with an extensive disciplinary history was sexually harassing her. Specifically, the girl reported the boy had been pressuring her to have sex with him in the school bathroom. On the date of the incident, the girl approached a teacher’s aide and complained that the boy was still harassing her. The aide proposed trying to catch the boy in the act by using the girl as “bait”. Eventually, the girl agreed to participate and the aide informed more senior school employees of this potential “sting operation”. In carrying out the plan, the girl told the boy she would have sex with him and they agreed to meet in the boys’ bathroom at which time the girl understood an adult would stop any assault from happening. The girl went into the bathroom and was raped by the boy. Apparently as the result of miscommunication, no employee intervened to prevent the assault.

The girl filed a lawsuit against the boy, the board and several employees asserting various state law claims including negligence, wantonness and outrage, as well as federal causes of action for violating Title IX and other constitutional claims brought pursuant to §1983. The defendants moved for summary judgment. The trial court granted summary judgment to the board on the Title IX claim finding that it did not have sufficient notice of the boy’s propensity to harass female students, and that it had not been deliberately indifferent to past allegations against him. The trial court also granted summary judgment on nearly all other claims for various reasons, including immunity and ultimately dismissed the few remaining state law claims against the individuals. The girl appealed.

The Court first noted the proper standard for considering Title IX student-on-student sexual harassment cases. It rejected the girl’s suggestion that the “substantial risk” standard that applies to teacher-on-student cases should apply here. Rather, it held the proper standard was the higher burden of “actual knowledge of sexual harassment so severe, pervasive and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits.”Quoting Davis v. Monroe County Board of Educ., 526 US 629 (1999). The Court noted that a lower standard would potentially cripple boards financially when faced with students engaging in typical immature sexual behavior.

The Court then applied that standard to the girl’s claims here and considered the five elements a Title IX plaintiff must prove: 1) that the entity received federal funds; 2) that an appropriate person had actual knowledge of the harassment; 3) that the known harassment was severe, pervasive and objectively offense; 4) that the entity acted with deliberate indifference to the harassment; and 5) that the harassment effectively prohibited the plaintiff from her education. The Court disagreed with the trial court and found the girl met each element and reversed the summary judgment granted the board.

The Court next considered the §1983 constitutional claims against the board and individual defendants. The Court noted that its decision regarding the Title IX claims are not dispositive of the §1983 claims as the two causes of action are different. After considering the particular claims against each defendant, the Court affirmed summary judgment as to most claims brought pursuant to §1983, but allowed one to survive against one of them employees. The Court also affirmed summary judgment as some of the state law claims, but reversed summary judgment on others. The Court then remanded the case back to the trial court for further proceedings. Attorneys for the defendants have indicated they will seek an en banc review of the decision.

— Jayne Harrell Williams

Jayne is General Counsel & Director of Legal Advocacy for the Alabama Association of School Boards

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