by Ryan LaFlamme | May 6, 2020 | General, School Management
A
panel of the U.S. Court of Appeals for the Sixth Circuit issued a 2-1 decision
holding that the Fourteenth Amendment’s Due Process Clause protects a
fundamental right to a “basic minimum education” that is potentially
violated when the state fails to provide adequate public schools. The Sixth
Circuit has jurisdiction over Ohio, Michigan, Kentucky, and Tennessee.
Judge
Clay, who wrote the majority opinion, summarized the crux of the Plaintiff’s
case. The Plaintiffs are students at several of Detroit’s worst-performing public
schools. They credit this substandard performance to poor conditions within
their classrooms, including missing or unqualified teachers, physically
dangerous facilities, and inadequate books and materials. Taken together, the
Plaintiffs say these conditions deprive them of basic minimum education,
meaning one that provides a chance at foundational literacy.
In
2016, the Plaintiffs sued several Michigan state officials, who they say are
responsible for these abysmal conditions in their schools. Plaintiffs allege
that state actors are responsible, as opposed to local entities, based on the
state’s general supervision of all public education, and also on the state’s
specific interventions in Detroit’s public schools.
The
Plaintiffs’ claims are all based on the Due Process and Equal Protection
Clauses of the Fourteenth Amendment. Plaintiffs argue that while other Michigan
students receive an adequate education, the students in Plaintiffs’ schools do
not, amounting to a violation of their right to equal protection of the laws.
They also argue that the schools they are forced to attend are schools in name
only, and so the state cannot justify the restriction on their liberty imposed
by compulsory attendance. And in their most significant claim, Plaintiffs ask this
Court to recognize a fundamental right to basic minimum education, an issue the
Supreme Court has repeatedly discussed but never decided.
The
District Court found that the Defendants (various state officials including the
Governor, Members of the State Board of Education, the State Interim
Superintendent of Public Instruction, Director of the MI Dept of Technology,
and the State School Reform/Redesign Officer, in their official capacities)
were in fact the proper parties to sue, but it dismissed Plaintiffs’ complaint
on the merits.
First,
it found that the Plaintiffs had not alleged a proper comparator for their
equal protection claim, nor had they highlighted any state policy or action
that was not supported by a rational basis. Second, it found that the Plaintiffs
had not sufficiently pleaded their compulsory attendance theory, and so the
court only viewed their due process claim as seeking an affirmative fundamental
right. Third, the court held that basic minimum education is not a fundamental
right, and so Plaintiffs’ due process claim was dismissed. The plaintiffs then
appealed.
The
Sixth Circuit panel agreed that the Plaintiff’s equal protection and compulsory
education claims were not properly pleaded and were therefore rightfully
dismissed by the District Court. However, the panel agreed that the Plaintiffs
had “been denied basic minimum education, and thus have been deprived of access
to literacy.”
Judge
Clay, seeming to understand the gravity of declaring a new fundamental
constitutional right, wrote the following:
“The recognition of a fundamental right is no small matter. This is particularly true when the right in question is something that the state must affirmatively provide. But just as this Court should not supplant the state’s policy judgments with its own, neither can we shrink from our obligation to recognize a right when it is foundational to our system of self-governance.
Access to literacy is such a right. Its
ubiquitous presence and evolution through our history have led the American
people universally to expect it. And education—at least in the minimum form
discussed here—is essential to nearly every interaction between a citizen and
her government. Education has long been viewed as a great equalizer, giving all
children a chance to meet or outperform society’s expectations, even when faced
with substantial disparities in wealth and with past and ongoing racial
inequality.
Where, as Plaintiffs allege here, a group of children is relegated to a school system that does not provide even a plausible chance to attain literacy, we hold that the Constitution provides them with a remedy. Accordingly, while the current versions of Plaintiffs’ equal protection and compulsory attendance claims were appropriately dismissed, the district court erred in denying their central claim: that Plaintiffs have a fundamental right to basic minimum education, meaning one that can provide them with a foundational level of literacy.“
The
dissent argued that a holding such as this is beyond the court’s role and is
something best left to the Legislature and the citizens at-large. Judge Murphy
wrote in dissent: “The Due Process Clause has historically been viewed,
consistent with its plain text, as a negative limit on the states’ power to
“deprive” a person of “liberty” or “property.”
U.S. Const. amend. XIV, § 1. It has not been viewed as a positive command for
the states to protect liberty or provide property. A state’s decision “not
to subsidize the exercise of a fundamental right” has never been thought
to “infringe the right,” even in areas where the states have long
provided that assistance.”
Judge
Murphy also noted the practical difficulties with attempting to enforce a right
and its impact on the separation of powers issues. “How should those courts
remedy the schools that they conclude are not meeting the constitutionally
required quality benchmarks? May they compel states to raise their taxes to
generate the needed funds? Or order states to give parents vouchers so that
they may choose different schools? How old may textbooks be before they become
constitutionally outdated? What minimum amount of training must teachers
receive? Which HVAC systems must public schools use?”
The
U.S. Supreme Court has not expressly held that the U.S. Constitution provides a
fundamental right to basic minimum education. As the dissent noted, the Court
held in Plyler v. Doe, that [p]ublic education is not a ‘right’ granted to
individuals by the Constitution.” Accordingly, there is good reason to
speculate that this decision would not survive an appeal to the U.S. Supreme
Court. However, it is not certain where the case goes from here. The State
Attorney General could seek a re-hearing before the entire Sixth Circuit bench
(en banc). This may not occur as the Michigan Attorney General has already
praised the decision. It is also possible that the State Legislature may seek
to intervene and ask for a re-hearing. That request may have to go to the same
panel that made this decision. Finally, the Sixth Circuit could decide itself
(sua sponte) to re-hear the matter en banc.
We will, of course, keep you apprised of this matter as it progresses. While this case focuses on State officials, the next suit to enforce this new right could include local and County officials as well. This would put courts in the role of making independent judgments about the adequacy of all aspects of the educational services provided by schools in Ohio. This would be a significant break from the normal legal environment in which courts are reluctant to second guess the discretionary decisions of elected officials in the state, focusing instead on whether there are procedural violations to remedy.
Gary B., et al. v. Whitmer, et al 2:16-cv-13292
by Ryan LaFlamme | Apr 16, 2020 | General, School Management
In two recent cases, a court of appeals has upheld political subdivision immunity in favor of school boards who have been sued by students and/or their parents.
In the first case, decided on March 26, 2020, the Court of Appeals for the Tenth District found in favor of the school board when the board requested the case be dismissed on immunity grounds. The case involved claims that, during the school’s annual class rocket launch, one of the rockets veered off course and struck appellant on her right lower leg, causing burns and scarring. The complaint further alleged that the teacher who supervised the launch failed to take proper precautions in launching the rocket. Additionally, alleged the school board permitted an unsafe environment and failed to require proper instruction. The court rejected the plaintiff’s argument that the accident was due to a physical defect on the grounds or buildings owned by the school district, therefore destroying the Board’s asserted immunity defense. The Court found that the rocket failure did not result from a physical defect on the grounds or buildings of the school district, and further, that the teacher exercised judgment and discretion in conducting the experiment. The Court opined that so long as the teacher did not act in a wanton or reckless manner, the teacher and the Board were immune from liability. An individual is deemed to act wantonly if that person acts without consideration of possible harmful consequences. A person who is reckless is aware that one’s conduct creates an unreasonable risk of physical harm to another, and proceeds anyway.
In a separate Tenth District case, also decided on March 26, 2020, the court upheld the immunity defense for a school board and its athletic staff after a sixteen-year-old student-athlete drowned while on a team basketball summer beach trip to Fripp Island. Here, the Court found that immunity “extends to most school activities and administrative functions of the educational process, even if not directly comprising part of the classroom teaching process.” The trip was organized by the head varsity basketball coach, whose job description indicates that the position is a year-round assignment, and the trip counted toward the number of days that the coach is permitted to provide organized basketball instruction to the team, per the Ohio High School Athletic Association (“OHSAA”) guidelines. The connection of the outing to functions of the educational process was considered by the court. The athletic director, the principal, and the superintendent were aware of and approved the Fripp Island trip. The school district provided a vehicle to transport players, the team members wore their school practice uniforms while they participated in practice, and participated in scrimmages against other teams during the five days of the trip. Similarly, the Court found that the coach and staff did not act in a reckless or wanton manner and thus were immune from liability in the exercise of discretion and judgment that are part of their job duties.
These cases emphasize that Ohio courts will recognize and enforce the immunity defense when properly applied and in the absence of wanton, reckless, or otherwise irresponsible actions on the part of district staff. The extension of this coverage to activities often seen as outside the scope of the educational process enlarges staff protections in its many areas of student supervision.
Douglas v. Columbus City Schools Bd. of Edn., 2020-Ohio-1133
Michael v. Worthington City School Dist., 2020-Ohio-1134
by Ryan LaFlamme | Mar 27, 2020 | COVID-19 (Coronavirus), General, Labor and Employment, Unemployment
Districts should expect to see a rise in unemployment claims due to the current pandemic. Ohio received 187,000 claims during the week of March 15-21. Substitutes, in particular, are likely to make claims during this time.
Governor DeWine has issued an order (EO 2020-03D) to ease the process of obtaining unemployment benefits. Employees who are ordered to stay home or isolated by an employer or public health authority, whether infected or not, will qualify for benefits so long as the employee is otherwise eligible. The basic requirements for eligibility for benefits are that a claimant has worked a sufficient number of hours and has earned a sufficient amount of pay during a period referred to as the “base period.” The base period is the first four of the last five completed calendar quarters at the time the claim is filed. (Claims filed in March would be calculated on the four quarters beginning October 1, 2018, through September 30, 2019.) Individuals must have at least 20 weeks of employment and an average weekly wage of $269 during the base period of the claim.
ODJFS issued a mass-layoff number (2000180) that employees can use to expedite the handling of their claim. Employees subject to RIF due to COVID-19 can use this form and reference number. http://www.odjfs.state.oh.us/forms/num/JFS00671/pdf/.
Substitute employees may file claims for lack of work due to the ordered shutdown of the school to students. Outside of the context of a shutdown, districts may attempt to challenge lack of work claims by substitutes, due to the nature of the assignment not having guaranteed hours or days of work per year. Many substitutes pick and choose their own assignments. Those arguments will not be applicable, where, as here, there are no assignments for the substitute to choose from. Therefore, such employees are much more likely to receive benefits under these circumstances.
Additional benefits of the order are that certain benefit recipients will not be subject to the work search requirement during the period of the emergency. All claimants, however, will continue to be required to be “able and available for work,” in order to receive benefits.
Finally, penalties against employers for failing to provide reports or make payments during the emergency declaration period.
The merits of each claim are fact dependent and may be subject to challenge even in light of the order. Please do not hesitate to contact an attorney at Ennis Britton to discuss your particular claim.
by Ryan LaFlamme | Mar 19, 2020 | COVID-19 (Coronavirus), General
As we continue to receive updates and navigate the changing circumstances day-to-day, we would like to brief you about some of the questions we have been receiving from schools around the State:
Can we continue to pay hourly staff members if on extended closure?
R.C. 3319.081 provides that “All nonteaching employees…shall be paid for all time lost when the schools in which they are employed are closed owing to an epidemic or other public calamity. Nothing in this division shall be construed as requiring payment in excess of an employee’s regular wage rate or salary for any time worked while the school in which the employee is employed is officially closed for the reasons set forth in this division.”
Accordingly, those non-teaching employees covered by R.C. 3319.081 can and should be paid for “all time lost due to the closure of school” under the current circumstances.
R.C. 3319.08 provides the same rights for teaching employees. Keep in mind that neither statute provides a premium rate of pay. Only regular wages are required by the statutes. However, some collective bargaining agreements provide for premium pay for work performed during “calamity days.” Unions are likely to assert that premium pay should be provided for employees who report to work during the time that the schools are closed to students. You should consult with legal counsel about how to proceed if the union demands premium pay.
Can I require self-reporting of staff?
You can request staff self-report if they are ill, under self-quarantine, or mandated quarantine.
Employers must generally be careful in inquiring about medical conditions of employees. The ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. One condition under which an employer may ask such questions is where the employee constitutes a “direct threat” to the health and safety of other employees. A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.
The EEOC has previously opined during the H1/N1 pandemic that where the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries (e.g., Do you have a compromised immune system?) and medical examinations (e.g., temperature readings). However, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. COVID-19 appears to be more severe than previous influenza pandemics and outbreaks both in terms of the rate of infection and the number of deaths and critical cases. Therefore, you are permitted to make inquiries about symptoms and susceptibility and to require self-reporting of employees.
Can I require self-reporting of students?
Since students have been ordered home, it is likely not necessary to issue a directive to families at this time.
Can employees use sick leave if self-quarantined?
It is understandable that employees would request sick leave while under self-quarantine. The sick leave statute, R.C. 3319.141, provides that employees “may use sick leave for absence due to personal illness, pregnancy, injury, exposure to contagious disease which could be communicated to others, and for absence due to illness, injury, or death in the employee’s immediate family.” A strict reading of the statute could be interpreted to mean that the employee was actually exposed, and not just avoiding the possibility of being exposed. Therefore, sick leave could be denied to an employee who has not actually been exposed to the disease. Also note that FMLA is not available for employees who fear being exposed to a virus, as such fear does not constitute a serious health condition.
Additionally, employees not reporting to work due to the closure to students will receive pay for all time lost due to the closure as discussed above. Such employees would not need sick leave.
Employers are permitted to be more generous than the law permits so there is a basis to allow the use of sick leave in these circumstances. You should check your policy manual and the collective bargaining agreement to see if there is any language that differs from the statute. It is not clear whether the auditor follows a strict reading of the statute due to the unique nature of this situation. If you wish to grant sick leave for employees who wish to stay home as a matter of self-quarantine who are otherwise not exhibiting any symptoms, you should discuss it with your legal counsel before proceeding.
Can I discourage international travel … or ask about international travel?
You can both inquire about and discourage international travel, but any directives regarding those matters would not necessarily have a lot of weight from an enforcement standpoint. You can also inquire with families of whom you know have traveled internationally recently. However, in light of the closure of school to students, and its potential extension to the end of the school year, this is likely not necessary in most circumstances.
Employees returning from international travel may be subjected to mandatory quarantine. Under these circumstances, sick leave would be appropriate.
Can I restrict an employee who appears sick/has a fever or wants to wear a mask? I have an employee with a weak immune system, can they wear a mask?
R.C. 3313.71 provides the authority to send home an employee or student who is suffering from a communicable disease. The statute provides that the school physician is to order such employees to be sent home. There are not any court interpretations determining whether it must be a “school physician” which makes the call. However, the Board has the authority to protect the health and safety of persons coming on to its premises and can, therefore, exercise such authority in these circumstances. Employees should be permitted, within reason, to wear appropriate safety equipment such as masks and gloves if they desire to. You should not send an employee home simply because the employee wishes to wear a mask or because an employee is of an age that is more susceptible to the disease.
Keep in mind that discrimination laws regarding ADA accommodations are still in effect during this time. During a pandemic, especially one which constitutes a direct threat, as COVID-19 likely does, certain ADA protections are relaxed in order to balance public health and safety with individual rights.
During a pandemic such as this one, employers may:
- Send employees home if they display influenza-like symptoms;
- Inquire about the exact symptoms an employee is experiencing who reports feeling ill;
- Check employees’ temperatures (keep in mind that some people infected with COVID-19 may not have a fever);
- Inquire about potential exposure to persons returning from business or personal travel;
- If the employer has sufficient objective information from public health authorities to conclude that employees will face a direct threat if they contract COVID-19, the employer may ask an employee, without having exhibited any symptoms, whether the employee has a medical condition that the CDC says could make them especially vulnerable to influenza complications;
- Encourage remote working (where possible) as a prevention strategy; and
- Require the adoption of infection control practices at work including hand washing, handling practices, and wearing masks and gloves.
Remember that other ADA requirements are still in place. Accommodations that are already being provided unrelated to the pandemic must continue. For example, An accountant with low vision has a screen-reader on her office computer as a reasonable accommodation. In preparation for telework during a pandemic or other emergency event, the employer issues notebook computers to all similar employees. In accordance with the ADA, the employer must provide the employee with a notebook computer that has a screen-reader installed.
by Ryan LaFlamme | Nov 19, 2019 | Board Policy & Representation, General, School Management, Student Education and Discipline
A dispute over
the disclosure of student records has led to the Court of Appeals for Ohio’s
Second Circuit to analyze whether a student’s right to privacy in education
records extinguishes upon death.
Both federal
and state laws protect the confidentiality of student education records and
personally identifiable information. The Family Educational Rights and Privacy
Act (“FERPA”) protects against the disclosure of education records without the
prior written consent of the parent or guardian of the student. Education records
are defined by the Act as “those records, files, documents, and other materials
which (i) contain information directly related to a student; and (ii) are
maintained by an educational agency or institution or by a person acting for
such agency or institution.” The right to consent to the disclosure of student
records transfers to a student upon reaching the age of 18, unless the student
remains a dependent of their parents.
R.C. 3319.321
also provides protection for student information. This statute is broader in
its scope, forbidding the disclosure of any personally identifiable student
information other than directory information.
The request at
issue surrounded a former student who committed a mass shooting in August of
2019, killing 9 people and injuring 27. The shooter was killed by law
enforcement officials at the scene. The Associated Press, among other media
outlets, made requests to the school for records of the shooter, particularly
discipline records. The school released only directory information, citing to
the privacy protections of FERPA and R.C. 3319.321.
The media
filed a lawsuit asking the Court to force the school to release the requested
records. The media alleged that while a student’s right to privacy protections
under the applicable laws transfers to the student into adulthood, there should
be an exception that the right to privacy in this regard ceases upon
death.
The Court
found the analysis inapplicable due to the school’s obligations under the laws
in addition to the individual’s privacy rights conferred by the laws. The two
are simply not comparable. The Court, noting that neither FERPA nor R.C.
3319.321 contains an exception for the death of a student, declined to create
one from the bench.
State
ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek Local Schools,
2019-Ohio-4187
