Read the November 2016 issue of Court Report, which includes such topics as Students First Act and transgender students and bathroom access . Click the case names to read the complete opinions. This newsletter is an ACSBA member benefit.

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NOVEMBER 2016 COURT REPORT

Alabama Court of Civil Appeals

• Students First Act – Discretion of the Hearing Officer

Boaz City School Board v. Stewart, -- So.3d --, 2016 WL 6543318 (Ala.Civ.App. Nov. 4, 2016)

This is an appeal of a Students First Act termination. In this case, a tenured teacher was terminated by the board after he was discovered working at his pawn shop while on paid medical leave with the district. Following his termination, the employee appealed and the hearing officer reversed the board’s decision on the grounds that it was arbitrary and capricious. The board appealed to the Court of Civil Appeals.

The Court first noted that the proper standard of review for the hearing officer is “arbitrary and capricious” which it described as “extremely deferential” to the board’s decision. The Court also noted that it gave no presumption of correctness to the hearing officer’s decision on appeal.

After careful review of the underlying facts, the Court was critical of the teacher’s apparent deception towards the board. It specifically cited the Alabama Educator Code of Ethics which requires teachers “should exemplify honesty and integrity in the course of professional practice” and specifically prohibits misrepresentations as it relates to leave and absences. Ala. Admin. Code 290-4-1-.01(6)(c), (c)2(iv). The Court criticized the hearing officer’s analysis and ultimately decided that the board’s decision was proper. The Court reversed and remanded the matter to the hearing officer to enter an order upholding the termination. It is not yet known if the teacher will seek further review from the Alabama Supreme Court.

The AASB Legal Assistance Fund is participating in this appeal as amicus curiae.

Matters of Interest

• Transgender Students and Bathroom Access

Gloucester County School Board v. G.G.

The US Supreme Court recently announced that it will take up the case of a transgender student in Virginia who sued for access to the bathroom of his choice. G.G., a biological female who identifies as male, was allowed to use the boys’ restroom for several weeks without incident. Following some parent complaints, the board adopted a new policy “biological gender” bathroom policy that gave transgender students the option of using the bathroom of their biological gender or an alternative private facility. The student sued claiming that the board violated Title IX. Following extensive litigation, the lower federal court ruled in favor of the board, the Fourth Circuit Court of Appeals ruled in favor of the student. The board filed a petition to the US Supreme Court has now announced that it will consider the case. Oral arguments are expected in Spring 2017

It should be noted that the US Supreme Court currently has only eight justices. In the event the case splits the Court down the middle and no new justice is confirmed, the Fourth Circuit’s ruling in favor of the student will stand. We will keep you informed as this case develops.

-Jayne Harrell Williams

Jayne is General Counsel &

Director of Legal Advocacy for the

Alabama Association of School Boards