by Pamela Leist | Dec 12, 2013 | General, Labor and Employment
On November 19, 2013, the Ohio Supreme Court concluded that, pursuant to R.C. 3319.16, acts of insubordination constitute “good and just cause” to terminate a teacher’s contract as long as the underlying rules or directives violated were themselves reasonable and valid. John Freshwater was an eighth grade science teacher at the Mount Vernon City School District. As early as 1994, Freshwater began to interject religious principles into his classroom instruction. Specifically, he supplemented school curriculum with religious handouts, showed videos on creationism and intelligent design, displayed religious materials in the classroom, made statements about the Bible, and awarded extra credit to students who attended religiously-based seminars that were critical of evolution. Although district administration occasionally directed Freshwater not to incorporate religious materials or teachings into his instruction, he generally received positive evaluations during the twenty-one years he taught in the district. His students also usually received the highest scores on state achievement tests.
In 2003, the Board of Education rejected Freshwater’s proposal to amend the district’s science curriculum by incorporating material that criticized the theory of evolution. However, Freshwater ignored the Board’s decision and continued to teach certain topics in accordance with his religious beliefs. A few years later, the district’s superintendent issued a written directive to Freshwater that he must delete all supplemental materials which were not scientifically accepted. Again, Freshwater chose not to comply with the directive.
Matters came to a head in the fall of 2007, when parents complained Freshwater used an electrical instrument to burn what appeared to be the sign of the cross into their son’s arm. Freshwater confirmed he used the instrument to mark the student, but denied the mark was intended to be a cross. The district responded by sending Freshwater a letter stating he could not use classroom instruments to shock students.
The following spring, Freshwater met with the school principal again to discuss issues related to his religious instruction. At the conclusion of the meeting, he received written orders in clear and unequivocal terms that he could not display religious materials in the classroom. Freshwater was specifically directed to remove the Bible displayed on his desk and a poster of the Ten Commandments that hung on his door. The written notice also stated “[u]nless a particular discussion about religion or religious decorations or symbols is part of a Board-approved curriculum, you may not engage in religious discussions with students while at school or keep religious materials displayed in the classroom.”
Freshwater refused to comply with the order despite several follow-up requests. Meanwhile, the parents of the student who was shocked in class sent a demand letter and filed suit against the district. In response, the district hired an outside investigator to observe Freshwater’s classes. The investigator reported that Freshwater taught creationism and intelligent design in class, discussed various other religious subjects, distributed religious materials, and made statements such as “science is wrong because the Bible states that homosexuality is a sin.” The investigator also discovered that Freshwater gave extra credit to students who viewed a movie on intelligent design.
Eventually by the end of the 2007-2008 school year, the Board decided to terminate Freshwater’s teaching contract pursuant to ORC 3319.16. At the public hearing, a referee addressed four specific grounds for termination set forth in the board’s resolution: (1) the burn incident, (2) Freshwater’s failure to adhere to curriculum, (3) Freshwater’s role in the Fellowship of Christian Athletes organization, and (4) his disobedience of orders. The referee concluded that claims (2) and (4) constituted just cause for termination.
Freshwater appealed the decision to court. Both the Court of Common Pleas and the Court of Appeals for Knox County upheld termination, and the Ohio Supreme Court granted review of the matter. The Court’s decision in the case was limited to whether the district met the just cause standard mandated by R.C. 3319.16. The Court provided only a cursory review of constitutional issues regarding Freedom of Religion and the Establishment Clause. Therefore, the Court did not provide any substantial guidance to school boards or teachers as to the constitutionality of teaching or displaying religious materials in a public school setting.
The Supreme Court ultimately held that in this case, Freshwater’s repeated acts of insubordination alone constituted “good and just cause.” The Court focused on Freshwater’s persistent disobedience and refusal to comply with administrative directives, and specifically on his refusal to remove religiously-oriented materials from class. According to the Court, “good and just cause” under ORC 3319.16 includes insubordination, which is defined as a willful disobedience of, or refusal to obey, a reasonable and valid rule, regulation, or order issued by a school board or by an administrative superior. The letter from Freshwater’s principal made clear that he could not “engage in any activity that promotes or denigrates a particular religion or religious beliefs while on board property, during any school activity” or while teaching, as mandated by Board policy and the law. The Court concluded that the district’s orders were both reasonable and valid, and further that Freshwater willfully refused to comply with the directives. The Court summarized their findings by stating that “Freshwater [was] fully entitled to an ardent faith in Jesus Christ and to interpret Biblical passages according to his faith, but he was not entitled to ignore direct, lawful edicts of his superior while in the workplace.”
The Supreme Court’s decision confirmed that insubordination alone may constitute just cause as long as the rule or directive is reasonable, and the employee willfully or intentionally refused to comply. However, it is important to note that the standard for just cause itself has not been lessened by the Court’s decision, and districts should be cautious to interpret the case otherwise.
Further, even though the Ohio Supreme Court did not address whether Freshwater’s actions violated the Establishment Clause of the U.S. Constitution to any great degree, school districts should be ever mindful of possible Establishment Clause infringements. The U.S. Supreme Court has interpreted the Establishment Clause to strictly forbid any law or act undertaken by a public entity that furthers religion, or attempts to disapprove of a particular religion or religion in general. The U.S. Supreme Court and lower courts repeatedly emphasize that a public entity must remain neutral on the subject of religion.
In this case, the extent to which Freshwater incorporated religious beliefs and displays into his classroom and instruction very likely constituted an Establishment Clause violation. Because of the many legal implications of such violations, we highly recommend that you contact legal counsel for advice on any issue that involves religion in schools.
Freshwater v. Mt. Vernon City School Dist. Bd. Of Edn., 2013-Ohio-5000 (November 19,2013).
by Gary Stedronsky | Dec 12, 2013 | General, Labor and Employment
The Strasburg-Franklin Local School District provided its teachers with school district laptops. A teacher asked if he could take his laptop home for the summer and was told that he could but that he needed to return it by June 30th. The teacher failed to return the laptop until late July.
The IT department inspected the laptop upon return because the teacher had previously downloaded a virus. The IT department discovered 84 thumbnails of graphic, sexual images in the laptop’s temporary internet files. The images were all cached within 23 minutes on one day.
The teacher claimed he had searched for the actor “Shane Diesel” on his computer because the actor was mentioned in a conversation earlier that day. He also claimed that “porn thumbnail pop-ups” appeared when he clicked on a link in a Wikipedia page.
The school district initiated termination proceedings and a hearing was held with a state referee. The referee found that the teacher’s actions could give rise to the suspension or termination of his teaching contract; but mitigating factors suggested a suspension rather than a termination (the teacher had good performance reviews). Therefore, the referee recommended a suspension of 45 days for the failure to return the laptop by June 30th and 45 more days for inappropriate use of a school computer.
The school district accepted the referee’s findings of fact but rejected the proposed discipline and terminated the teacher. The teacher appealed to the court of common pleas. The court of common pleas reversed the school district’s termination because it found that the images were not hostile to the community and this was private conduct that had no impact on his professional duties. The teacher was then reinstated with full back pay.
The school district appealed to the Fifth District Court of Appeals. The appellate court concluded that it could only overturn the lower court if the lower court’s decision constituted an “abuse of discretion” – a difficult standard of review for the school district to overcome.
The appellate court denied the school district’s appeal finding no abuse of discretion in the lower court’s ruling. The appellate court reviewed other termination decisions in Ohio and found that appellate courts will affirm a board of education’s termination decision when the teacher’s behavior had or could have had a serious effect on the school system. In this case, the appellate court found that the teacher’s actions did not occur on school property and did not involve any students. This also was not a criminal act. Therefore, the appellate court determined that the lower court did not abuse its discretion because the conduct had no impact on the teacher’s professional duties and his actions were not hostile to the school community.
The discovery of pornography on a school district computer is employment misconduct that is generally considered a “slam dunk” termination case (alcohol, drugs, violence, and sexual conduct are some others). The teacher was unquestionably wrong in using the school district’s laptop in this manner. In fact, readers are cautioned not to utilize their school computers or devices to Google “Shane Diesel” out of curiosity. Trust me, the Google results alone should have told this teacher that this was off-limits. Yet, the teacher clicked-away and the state referee and courts overturned the school district’s termination decision because the teacher’s behavior supposedly had no impact on his professional duties. This decision demonstrates that there really are no “slam dunk” termination cases. Every decision to terminate a teacher must be made with the understanding that the time and money invested in a termination case may not always result in the desired outcome – no matter how strong you think the case is.
Winland v. Strasburg-Franklin Local School District Board of Education, Fifth District Court of Appeals, Case No. 12 AP 10 0058
by Ryan LaFlamme | Nov 26, 2013 | General, Workers’ Compensation
One of the goals of the workers’ compensation system is to get employees back to work as quickly and as safely as possible. One way that employers may be able to bring employees back quickly is by offering light duty work to the employee. In order to enable the employee to accept light duty work, it must accommodate any restrictions the employee’s physician of record may order with regard to physical activity. Simply creating busy work for an employee to return to may not always be efficient and there are some employees who may be completely disabled due to their work injury or who may have restrictions that an employer cannot accommodate. Accordingly, not all claims are open to this particular remedy.
However, where an employee has restrictions but cannot return to the former position of employment, employers should at least consider whether light duty work can be created. In addition to getting the employee acclimated to working again and perhaps hastening the time in which the employee can return to the former position of employment, offers of light duty work can also be a means to bring and end to stagnating periods of temporary total disability.
Temporary total disability is a wage substitute for claims in which the employee, due to the work related injury has suffered a disability which prevents them from returning to the former position of employment. Where the employer chooses not to provide salary continuation, the Bureau will pay wage substitute benefits to the employee. Temporary total disability benefits can only be cut off under certain circumstances:
- The employee returns to the former position of employment or any other work for any employer.
- The employee is released by the employee’s physician to return to the former position of employment.
- The employer offers the employee work within the employee’s physical capabilities.
- The employee has reached maximum medical improvement.
- The benefits have been paid due to a substantial aggravation of a preexisting injury and the injury has returned to the level it was prior to the aggravation.
Caution is advised as it is not enough to simply inform the employee that light duty work is available. The offer must identify the position offered and must include a description of the duties required of the position and clearly specify the physical demands of the job. For example, if the job will require lifting, information on the weight and frequency involved. An oral job offer is acceptable, but if the employee refuses and the employer desires to use that refusal as a basis for terminating temporary total disability benefits, the offer must be reduced to writing.
Therefore, the best practice for any light duty offer would be to make the offer in writing, by certified letter, which clearly identifies the work available, and which clearly describes the duties and physical demands. Skip the oral offer and start off with a written offer as it must be in writing to be enforceable in any case.
by Gary Stedronsky | Oct 17, 2013 | General
A California jury recently awarded a father $2,850,000 after a school district released his son to an unauthorized person who kidnapped the child and took him to Mexico.
The school was aware that the student’s mother had been deported to Mexico in 2010. Thereafter, the child went to live with his father in California. One day a person identifying herself as the boy’s mother called the school and told the office manager that the child had a doctor’s appointment and that she was unable to take him because of work. She informed the school that her boyfriend would pick the boy up to take him to the appointment. The office manager noticed that the boyfriend was not listed as an emergency contact but told the mother that she would allow him to pick the child up anyway as long as he showed identification.
The supposed boyfriend of the mother appeared, presented identification, and was permitted to take the child from school. Unfortunately, the man kidnapped the child to Mexico where he is believed to be living with his mother.
The father sued the school district on behalf of himself and his son claiming deprivation of father-son contact, negligence, and intentional infliction of emotional distress. The jury awarded the father $2,000,000 and the son $850,000.
The main reason that the school district was found liable was because it failed to follow its policy concerning the release of students. The policy specifically stated that students would not be released to anyone who was not listed as an emergency contact. The school unsuccessfully argued that a parent’s verbal consent can override the specific policy.
This case represents the importance of steadfastly following school district policies and procedures. The failure to do so in this case resulted in the student’s kidnapping and the school district being responsible for nearly $3,000,000 in damages. The school district’s policy on the release of students was sound. In fact, our office recommends similar language in policy. Exceptions could also be permitted (for instance, written consent from a parent) but any such exceptions should be clearly delineated in policy and the policy must be strictly complied with, especially in the situation where both parents do not have legal and residential custody of the child. Even the best policy is worthless if it’s not followed.
by Jeremy Neff | Aug 5, 2013 | General
A month after Governor Kasich signed HB 59, Ohio’s two-year budget, the dust is starting to settle and certain issues are standing out as of particular concern to our clients. Over the coming days and weeks we will continue to address these issues in our blog posts and tweets, our School Law Review monthly newsletter, and in our presentations and advice to clients. Today we will start with an issue that is particularly time-sensitive: home school and private school student participation in extracurricular activities.
HB 59 created new law that allows home school and private school students who are not even partially-enrolled in a public school to participate in a public school’s extracurricular activities. There are numerous restrictions on this new right. For example, only a home school student’s district of residence is required to allow such participation, and the district may impose whatever normal requirements it does for its own students (e.g. pay to participate fee, academic eligibility, enforcement of prior expulsion periods, etc.). Granted, these normal requirements can be almost meaningless as applied to a home school student: Minimum g.p.a. requirements are the most frequently cited standards that will be impossible to impose for longer-term home school students.
Lost in much of the discussion about these new requirements is the fact that they are substantive law (e.g. not mere spending measures). Because of this, the new extracurricular requirements cannot take effect until 90 days after the Governor signed HB 59. That pushes the effective date to September 29. Why is this important? Because this means there is no law allowing strictly home schooled students to participate in extracurricular activities at this time, and there will not be until well into the fall sports season. It should be noted that prior law allows partial enrollment of home school students at the option of each school district, and OHSAA allows partially enrolled students to participate in extracurricular activities.
Because the law is not yet effective, districts should not allow home school students to participate in fall sports as they get under way in the coming days and weeks. Adding to the confusion is the fact that OHSAA has indicated by a press release that they are treating the law as effective retroactively to July 1. They acknowledge that this decision is not in line with the law, which unquestionably does not exist until September 29.
Regardless, districts should follow the requirements of the law, and until September 29 there is no law allowing strictly home schooled students to participate in extracurricular activities. Because many sports either have try-outs prior to September 29, or even if they do not have try-outs they do not allow students to begin participating halfway through the season, it is quite possible that no home school students will be eligible to participate in sports until the winter season. Please note that the new law applies to extracurricular activities other than sports, as well, and for other types of activities it may be appropriate to allow home school student participation starting on September 29.
by Gary Stedronsky | May 21, 2013 | General
The Tenth Circuit Court of Appeals in Denver recently upheld a school district’s use of a “timeout room” to discipline and briefly restrain a developmentally disabled student with disruptive behavioral issues. The student, J.M., was five years old and was known to throw tantrums, yell, spit, and kick in class. As a result, he was often placed in the timeout room, described as large enough for a student and teacher to fit comfortably and equipped with a light and window. The district stated that he was placed in the room around 30 times over a span of two school years and was never kept in the room longer than four minutes.
The student’s parents sued individual school officials, including teachers and the principal, and the school district, claiming that use of the timeout room was a violation of their child’s constitutional rights under a 14th Amendment due process “shocks the conscience” analysis. To succeed on this type of claim, the challenged behavior must amount to a “brutal and inhumane” abuse of official power literally shocking the conscience. This standard is applied in all school discipline cases, not just cases involving school-inflicted corporal punishment.
The parents’ claim was based upon the district’s use of the timeout room in general, as well as a specific incident in which the school principal forced J.M. into the room and placed a chair in front of the door. While the Court acknowledged these particular details surrounding use of the timeout room were “a careless or unwise excess of zeal,” it nonetheless held that no conscience-shocking events had occurred. Therefore, the Court found no constitutional violation.
Because the Court found that no individual officials had violated J.M.’s constitutional rights, it stated that the principal also could not be liable under a theory of supervisory liability and the district could not be liable because the challenged conduct was not pursuant to official policy or custom.
The parents also attempted to raise a Fourth Amendment claim that the timeout room was a “seizure” that should have been analyzed under a reasonableness standard. Analyzing a school discipline case under this standard is more favorable to plaintiffs because it is easier to prove than the “shocks the conscience” standard. While the parents did not properly raise the claim and thus were barred procedurally, the Court stated that it is not well settled law that a court has any obligation in a school discipline case of this nature to evaluate a Fourth Amendment claim. Thus, even if the parents had properly raised the claim, the Court would have declined to consider it.
Although in this case the Tenth Circuit remained faithful to the Fourteenth Amendment shocks-the-conscience standard and declined to even additionally consider the Fourth Amendment reasonableness standard, in recent years other circuits have begun to allow such claims in analyzing various types of school discipline. Cases from the Ninth and Third circuits have involved excessive force or detention by school officials. In the Seventh Circuit, the Fourth Amendment standard was applied when a teacher “seized” a student by attempting to drag her out of the classroom by her elbow. In these cases, courts will often allow both standards to be applied to the conduct at issue. Because a Fourth Amendment reasonableness standard is arguably more lenient and plaintiff-friendly, school districts should be aware of the potential consequences of discipline if analyzed under both the Fourteenth and Fourth Amendments.
