Keep Calm and Just Keep Serving. Understanding the obligation to provide services after an MDR team decision is not always clear to all school employees. Erin and Jeremy discuss the “Black Letter Law” related to MDRs and what happens when MDR teams venture into the realm of behavior not being a manifestation of a student’s disability. teams. They share a recent case from South Dakota which highlights the importance of the IEP team’s involvement in determining what services will be provided in order to meet the IEP goals and the general education curriculum.
You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.
The Special Education Team of Ennis Britton is pleased to announce the rollout of our new podcast “On the Call”. Each episode focuses on a real-life special education scenario you may have encountered or might bump into very soon. Ennis Britton attorneys Jeremy Neff and Erin Wessendorf-Wortman take the call and then discuss applicable cases and laws related to the scenario presented.
The first episode covers the basics of a Manifestation Determination Review or “MDR”. They review a recent case in Connecticut that has implications for MDR meetings and highlights what you should consider related to the behavior which resulted in the MDR and the importance of digging into the details as you prepare for the meeting.
You can also listen to the first episode of the podcast here or on Spotify, Amazon and Google Podcasts. Look for new episodes on the second and fourth Tuesdays of the month.
A complaint was recently filed with the Student Privacy Policy Office (SPPO) alleging a Family Educational Rights and Privacy Act (FERPA) violation when two teachers recorded students in the classroom on their personal cell phones.
Students’ education records are protected under FERPA. The term “education records” is defined, with certain exclusions, as those records that are directly related to a student and which are maintained by an educational agency or institution, or by a party acting for the agency or institution, to which funds have been made available under and program administered by the Secretary of Education.
Under FERPA, a school is prohibited from disclosing personally identifiable information from a child’s education records, without consent, unless the disclosure meets an exception to FERPA’s general consent requirement.
Any complaint must:
be filed by a parent who maintains FERPA rights over the education records which are the subject of the complaint;
be submitted to the SPPO within 180 days of the date of the alleged violation or of the date that the complainant knew or reasonably should have known of the alleged violation; and
contain specific allegations of fact giving reasonable cause to believe that a violation of FERPA has occurred.
Ultimately, the parents failed to establish that the teacher’s recording qualified as part of the student’s education record and SPPO ruled that the videos did not violate FERPA. The SPPO maintained that the recordings did not focus on a specific student, but instead showed students participating in school activities without highlighting a particular student. They further noted that the SPPO has not issued formal guidance on the use of personal devices by school officials and the FERPA regulations do not specifically address this issue.
What Does this Mean for Your District?
While the SPPO determined that the recordings in this case were not prohibited under FERPA, SPPO did indicate that other laws protecting the confidentiality of information in general or personally identifiable student information could come into play. Great caution and care should be exercised by school officials when making recordings or taking photographs in a classroom to ensure that prior consent is obtained to ensure that no federal or state laws are violated.
This case arose because a philosophy professor at Shawnee State University (Portsmouth, Ohio) refused to abide by the University’s policy requiring that he refer students with pronouns corresponding to their gender identity. The professor is a devout Christian whose religious convictions influence his thoughts on human nature, marriage, gender, sexuality, morality, politics, and social issues.
At the start of the 2016-17 school year, the University informed its faculty that they were required to refer to students by their preferred pronouns. The professor was informed that he would be disciplined if he refused to use a pronoun that reflects a student’s self-asserted gender identity. In his class that semester, a student requested to be referred to utilizing the female pronouns, and the professor would not oblige. The professor then requested accommodations for his religious and personal views. The student then filed a Title IX complaint against the professor. The professor’s request for religious accommodations were denied by the University, and the Title IX complaint resulted in a conclusion that the professor created a hostile environment for the students in his class; a violation of the University’s nondiscrimination policies, which resulted in discipline.
Then, the professor filed a lawsuit alleging that the University violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Ohio Constitution, and his contract with the University.
The Sixth Circuit found that First Amendment free speech rules apply differently when it is government speech. Normally when public employees are speaking pursuant to their official duties, they are not speaking as citizens with First Amendment protections: therefore, the Constitution does not protect their speech/communications from employer discipline. However, in this case, the Sixth Circuit highlighted its belief that professors at public universities retain First Amendment protection- at least when engaged in core academic functions, such as teaching and scholarship.
The Court rejected the argument that “…teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction.” Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 680 (6th Cir. 2001). The Court recognized the professor’s rights to academic freedom and freedom of expression within this case, including within that academic freedom the choice to use of pronouns to shape classroom discussion. At the university level, this professor was able to make choices regarding gender identity for appropriate classroom discussion in his political philosophy courses.
In summary, the Court remanded the case back to the lower court for the lower court to issue a decision in compliance with the First Amendment rights recognized by the Sixth Circuit.
What this means for your District
While this case deals with speech from a university professor, and not that of a K-12 educator, it is a good case to be aware of when faced with situations that may arise from staff members who refuse to refer to a transgender student with the student’s preferred pronouns or nicknames. Schools are required to recognize the academic freedoms that exist for educators- but how this will be balanced against the needs of minor students in the future will be one to watch. In this case, the Court was not remotely persuaded by the arguments of the University that a hostile environment was created by the professor’s actions against the transgender students in his class, because the Court was not presented with any evidence or arguments that the student(s) was denied any educational benefits or opportunities.
The United States District Court for the Southern District of Ohio recently ruled in favor of a school district when an employee brought disability discrimination and retaliation claims after he was terminated for working for the local police department while being out on sick leave. Schwendeman v. Marietta City Schools, S.D. Ohio No. 2:18-CV-588, 2020 WL 519626 (Jan. 31, 2020).
The Plaintiff in this case was a bus driver employed by the Defendant school district, who also worked as a noon duty supervisor throughout the school day. In August of 2016, the Employee was required to have surgery on his foot. Following surgery, the Employee requested sick leave in order to recover. The Employee’s sick leave request was granted and the Employee returned to work on October 27, 2016.
When the Employee returned to work, the District set up a meeting because an employee’s wife had seen the Employee walking around in a Belpre Police Department uniform while out on sick leave. The District called the Chief of Police and discovered that the Employee was a volunteer for the police department, hired through a local subcontracting company. The Employee acknowledged that he was volunteering with the police department, but was not specific as to what days he was working and whether or not he was getting paid. After holding two subsequent meetings, the District was unable to determine which days the Employee was working with the police department or whether he was receiving compensation. Shortly thereafter, the Employee sent the District an email asking about the status of the investigation. The District replied stating the investigation was closed because of their inability to confirm whether the Employee was paid by the police department or by their subcontractor or the exact dates in which the Employee was working while out on leave.
Unsatisfied with the District’s response, the Employee filed Charges of Discrimination against the District with the EEOC and OCRC for the events that transpired throughout the investigation. The Employee’s claims were denied along with his appeals. Shortly after the discrimination charges were filed, the District reopened the investigation in order to defend the allegations stated within the charge. At that time, the District received records from the police department indicating that the Employee had been paid for working six days for four hours a day during the time he was on sick leave.
Upon learning this information, the District sent the Employee a Notice of Suspension and a Notice of Proposed Discharge for working with the police department during his sick leave. The grounds for termination included violation of O.R.C. § 2921.13 “falsification for the purpose of obtaining governmental benefits”, and O.R.C. § 3319.141 “falsification of an application for sick leave from public school employment.” The notices also stated that the Employee was being disciplined for his dishonesty during the school’s investigation. The District ultimately terminated the Employee’s employment for the reasons stated above.
The Employee then filed Charges of Retaliation against the District with the EEOC and OCRC. Again, these charges and the appeals thereof were ultimately denied. The Employee then filed a grievance in accordance with the collective bargaining agreement. The grievance was ultimately withdrawn in order for the Employee to seek legal help. This suit followed.
Lawsuit The Employee brought an action alleging disability discrimination, FMLA retaliation, Retaliation, and Intentional Infliction of Emotional Distress.
Disability Discrimination under the ADA and Ohio Law The Court found that the Employee had established a prima facie case of disability discrimination and considered the Employee as “disabled” considering the fact that the Employee had foot surgery and was impaired for three weeks while recovering.
However, the Court agreed that the District had legitimate non-discriminatory reasons for their employment action: falsification of sick leave, falsification of benefits, and dishonesty were legitimate reasons for termination. Further, the Court found that the District had an “honest belief” in the non-discriminatory reason it made in its employment decision and therefore the Employee’s claims were unsupportable. The key inquiry in this regard is to determine whether the employer made a reasonably informed decision before taking action. (Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598-99 (6th Cir. 2007).) In this case, the District reopened their investigation into the Employee after receiving charges of discrimination on an honest belief and in pursuit of new information: that the Employee worked with the Belpre PD on six days while on sick leave and had received payment from the subcontractor as a result of working with the Belpre PD while on leave. Upon learning this information, the District sent notices of termination based on these grounds.
The Court further shut down the Employee’s argument that he did not mislead the District nor did he falsify any documentation regarding his surgery or his need for sick leave. The Court determined that a reasonable jury could not doubt the District’s explanation that they terminated him for falsifying sick leave. The District terminated the Employee because they believed he was dishonest and falsified his sick leave. Additionally, the Court noted that even if the District was mistaken in believing that the Employee had been dishonest of falsified leave, such a mistake is not a sufficient reason to doubt the District’s honest belief. (Clay v. United Parcel Serv., Inc., 501 F.3d at 713-15.) Moreover, the Employee’s assertion that the District wrongly assumed he could perform his duties because he was working during sick leave is insufficient to cast doubt on the District’s honest belief. Furthermore, the Employee also failed to establish any evidence that would establish discrimination as the real reason for the District’s employment decision. Thus, summary judgment on the Employee’s ADA and Ohio law discrimination claims were appropriate.
Retaliation Under the ADA The Employee also brought retaliation claims under the ADA. However, the Court found that there was not temporal proximity between the Employee’s protected activity (filing charges with the EEOC and OCRC) and the adverse employment action (termination). When there is some time lapse between the activity and the adverse employment action, the Employee must couple that with some other evidence of retaliatory conduct in order to show causation. (Little v. BP Expl. & Oil Co., 265 F.3d 357, 365 (6th Cir. 2001).) In this case, the Employee was terminated three months after he filed Discrimination Charges with the EEOC and OCRC. Thus, he must point to some other evidence of retaliatory conduct in order to show causation. The Employee attempted to show this retaliatory conduct by the fact that the District reopened the investigation into the Employee because he filed the Discrimination Charges. However, the Court had already previously determined the District properly reopened the investigation in order to respond to the allegations therein and not as a general response to the charges being filed. Thus, the Court ultimately concluded that the Employee failed to establish a causal connection between his protected activity and his termination. Therefore, his ADA retaliation claim failed.
Ultimately, all of the Employee’s claims failed and were dismissed. This case is support for school districts taking action based on an employee’s dishonest actions while out on leave, even when such action appears in close proximate time to certain protected actions of an employee (e.g. filing charges of discrimination with EEOC and/or OCRC). If a district learns new information it is not prohibited from acting on the new information even though an employee may have sought other legal avenues.
