Read the June 2017 issue of Court Report, which includes cases addressing Title IX and threats, as well as important information regarding the Students First Act, AAA and transgender students. Click the case names to read the complete opinions. This newsletter is an ACSBA member benefit.

 

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JUNE 2017 COURT REPORT

 

Eleventh Circuit

• Title IX – Sexual Harassment

Doe v. Bibb County School District, --Fed.Appx.--, 2017 WL 2240825 (11^th Cir. May 22, 2017)

This case involves the rape of a special education student, Jane Doe, at a Georgia high school. A male student went to Jane Doe’s classroom and said his teacher needed Doe. Doe’s teacher let her leave the class without verifying the male student’s claim. The male student took Doe to a bathroom where she was raped by seven male students. None of the students involved had a history of violence or sexual harassment at the school. Doe reported the attack to the school’s law enforcement unit and the male students were quickly arrested. Doe never returned to the school and never saw her attackers again. The school offered Doe support and home schooling for the rest of the year. She ultimately transferred to private school at the board’s expense.

After the boys were arrested, the board discussed whether its law enforcement unit or the local police department should investigate the attack. Within weeks, the board decided to turn the investigation over to the police department. Doe ultimately recanted her statements about the attack and the criminal charges were dismissed against the boys. After the criminal charges were dismissed, the board placed some in alternative school for the rest of the school year and some never returned to school at all. Once she recanted, Doe was also recommended for discipline for engaging in sexual misconduct. Because of her special education status, a manifestation hearing was held. Attempts to discipline Doe were abandoned because the hearing determined her conduct was caused by her disability. The services provided by the board continued even after she recanted her claims against the boys.

The board took several actions as a result of this incident: the Title IX coordinator initiated a school safety review; sexual harassment and safety policies were reviewed; changes were made regarding students leaving class; administrators received additional training; another police officer was hired for the school; locks were placed on restroom doors; and teachers were required to supervise students in the restrooms. Nevertheless, Doe sued the board under Title IX based on a violation of her rights before and after the attack. As to the before claim, the board argued that it was not responsible for preventing the attack because it had no notice that the boys were dangerous. As to the after claim, the board argued that it could not be liable for how it handled the aftermath because it was not deliberately indifferent to the incident. The lower court entered summary judgment for the board and Doe appealed.

To prove a claim under Title IX for student-on-student harassment, a student has to show 1) the defendant received federal funding; 2) an “appropriate person” (an official with the authority to correct the harassment) had actual knowledge of the harassment; 3) the board acted with deliberate indifference to known harassment; and 4) the harassment was so severe and pervasive that the student was effectively blocked from an educational opportunity.

The Court first considered the before claim. Doe argued that the board had actual notice of the danger to her because of two sexual assaults that occurred in 2002 (ten years before the Doe incident at a different high school) and 2008 (four years before the Doe incident at the same high school). Following both incidents, officials changed procedures and took other steps to correct the deficiencies which led to the attacks, including changing supervision procedures, disciplining school personnel and adding locks to restrooms. None of the students involved in the Doe incident, including Doe, were involved in the prior incidents, but the Court noted that prior harassment did not have to involve the same victim or perpetrator to establish actual notice--only that the past incidents were sufficiently similar to put school officials that Doe could be possibly harassed. Absent this knowledge, the Court held that the board could not be liable for the before claim.

The Court next considered the after claim. Doe argued that the decision to turn the investigation over to local law enforcement and its attempt to discipline her established the board’s deliberate indifference. A board is deliberately indifference when its “response to the harassment [or lack of a response] is clearly unreasonable in light of the known circumstances.” The Court found that the board’s response was not clearly unreasonable. It was not unreasonable for the board to turn the investigation over to local law enforcement--even if its rationale was based on public perception of the incident or other strategic or political concerns. It was also not unreasonable to recommend discipline for Doe in light of her recantation, but even if it was, no discipline actually occurred and Doe’s educational benefits were not impacted.

While sympathetic to Doe’s suffering, the Court ultimately held that she could not establish a violation of Title IX. The Court affirmed the lower’s court’s grant of summary judgment.

• First Amendment - Threats

Yates v. Cobb County School District, --Fed.Appx.--, 2017 WL 1826862 (11^th Cir. May 4, 2017)

This case arose from an incident at a school event. A student’s mother was at her daughter’s high school for a freshman advisement event. The mother became angry at the event and told a staff member, “Whoever organized this needs to be shot in the head.” The mother did not realize that the staffer she was speaking to had organized the event. During an investigation, witnesses reported the mother was angry and yelled the “shot in the head” statement multiple times. The mother was ultimately arrested for disrupting a school event, but the charges were later dropped after the mother agreed to apologize to the school officials and undergo anger management. Later that year, a school administrator incorrectly told the mother that she could not come on school property because of a criminal trespass warrant. The mother then sued the district, the administrator and others for making false statements which caused her to be arrested and falsely telling her that she was barred from entering school property. She made claims based on the First, Fourth and Fourteenth Amendment as well as Section 1983, and sought compensatory and punitive damages. The lower court granted the defendants summary judgment and the mother appealed.

The Court first considered whether the defendants sued in their individual capacities were entitled to qualified immunity. In order to establish her retaliation claim under the First Amendment, the mother would have to show the defendants violated clearly established law when they took action against her based on her statements at the event, but the mother failed to offer any such case. The cases presented by the mother involved only student speech. Therefore, they could not be used to support her claims here. The Court next looked to her claims regarding the Fourth Amendment. Specifically, she claimed that her “shot in the head” statements were “hyperbole” and the school resource officer should have known she was not serious. While the Fourth Amendment prohibits law enforcement from using false statements to obtain an arrest warrant, the mother could not show that any of the statements relied on by law enforcement were false under the circumstances, particularly in light of her behavior and angry demeanor at the event. Therefore, her Fourth Amendment claim could not stand. Finally, the Court considered the Section 1983 claim against the board. The board cannot be held liable for the actions of its employees, but it can be held liable if it has a custom or policy which was the moving force behind the constitutional deprivation. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). To establish her claim against the district, she would have to show 1) that her constitutional rights were violated; 2) the board had a custom or policy that was deliberately indifferent to her rights; and 3) the custom or policy caused the violation. The mother could not establish any of these elements here. Accordingly, the Court upheld summary judgment for all defendants.

Matters of Interest

• Students First Act - Notice

Dailey v. Monroe County Board of Education, -- So.3d --, 2017 WL 1967724 (Ala. May 12, 2017)

We previously addressed this case in the March 2017 Court Report. At that time, the Court held that the inadvertent omission of the termination letter from the record was fatal to the board’s decision to terminate the employee. The board asked the Court to reconsider. The Court has now withdrawn its earlier decision and substitutes it with the current opinion. Despite withdrawing its initial decision, the Court still found that the lack of notice in the record was fatal. The decision was based on the Student First Act’s intent to provide a fundamentally fair process to employees.

• Students First Act – Transfers

Under the Students First Act, certain actions give the employee the right to a conference with the board, including transfers of tenured teachers and suspensions of less 20 days or less. While not specifically required by the Act, it is advisable that superintendents provide the employee enough notice of the recommendation before holding the board conference. It is recommended that notice be given to the employee at least 10-14 days before the conference is scheduled. This will give the employee enough time to seek representation through AEA or prepare a response. Holding the conference too quickly may leave us open to due process problems should an employee challenge the action. This recommendation will be included in future editions of the Guidelines for Implementing the Students First Act. In the meantime, consult with your local counsel regarding this suggestion.

• AAA – Address Verification

Recently, questions have been raised regarding verification procedures required by the Alabama Accountability Act. When students at so-called “failing schools” are seeking scholarships to attend school elsewhere, the AAA requires the local superintendent to verify that the address provided by the student is within the district. According to media reports, some superintendents have expressed concern that this provision requires that they verify that the student is actually residing at the provided address. The law makes no such requirement. The law states as follows:

Ensure that educational scholarships are provided only to eligible students who are zoned to attend a failing school so that the eligible student can attend a qualifying school. To ensure compliance with the immediately preceding sentence, the local board of education for the county or municipality in which an eligible student applying for an educational scholarship resides, upon written request by a parent, shall provide written verification that a particular address is in the attendance zone of a specified public school . The State Department of Education shall provide written verification of enrollment in a failing school under this chapter.

Ala. Code §16-6D-9(b)(1)(o). (Emphasis added).

Statutes are sometimes poorly written and difficult to understand, but here the language is clear. The AAA does not require the local superintendent verify a student’s actual residence; only that the provided address is within the local district. We encourage you to seek advice from your local counsel if you have concerns regarding this provision.

• Update on OCR and Transgender Students

On June 6, 2017, OCR issued new internal guidance on how the agency would handle pending and future complaints by transgender students. The internal guidance is consistent with past actions of the Trump administration to roll back Obama-era protections guaranteed to transgender students. Investigators must continue evaluating complaints based on Title IX, but they may no longer rely on the May 2016 Dear Colleague Letter which significantly expanded protections. As a result, OCR investigators are being instructed to dismiss any complaint that does not fall within the stated jurisdiction of Title IX, specifically including access to restrooms based on a student’s gender identity. Complaints by transgender students regarding harassment, discrimination or retaliation based on their sex remain actionable.

Despite this internal guidance, AASB’s recommendations regarding transgender students remain the same. As educators of all children, our schools must:

• Treat every student, including those with gender identity issues, with dignity, respect and compassion;
• Address issues regarding transgender accommodations on a case-by-case basis with a goal towards making students feel comfortable, secure and prepared to learn; and
• As always, protect all students from harassment, bullying and discrimination.

As issues arise, we encourage you to share your experiences with us so we are aware of how parents, students and schools are handling these changes. As always, continue to work closely with your local counsel.

• Changes in OCR Investigations

On June 8, 2017, OCR issued new internal directives regarding how complaints should be investigated against school districts. For example, there will no longer be automatic referral of certain complaints to headquarters, investigators will be permitted to determine the scope of an investigation rather than the mandatory scope previously in place, and a new focus will be placed on achieving voluntary settlements. The practical impact of these directives suggests that investigators may be less aggressive during pending and future investigations. While local school boards may benefit from these changes which will likely reduce the burden on our resources, we must remain vigilant that we adequately protect the rights of students and their parents irrespective of OCR’s shift in priorities.

 

-Jayne Harrell Williams

Jayne is General Counsel &

Director of Legal Advocacy for the

Alabama Association of School Boards