Court Finds in Favor of Professor Who Refuses to Utilize Student’s Preferred Gender Pronouns

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. 

Meriwether v. Hartop, (C.A. 6, 2021) 992 F.3d 492

Ohio Court Denies Temporary Restraining Order to Halt Return to In-Person Instruction

Earlier this month, a judge in Hamilton County sided with the Board of Education of the Cincinnati Public School District (“Board”) when she denied the Cincinnati Federation of Teachers’ (“Union”) motion for a temporary restraining order and preliminary injunction that sought to delay the return to in person learning. Cincinnati Fed. of Teachers v. Bd. of Education of the School District of Cincinnati, No. A2100376 (Feb. 1, 2021).

This case was the result of the Board voting to resume in-person instruction beginning February 1, 2021. As a result, the Union filed a motion for a temporary restraining order on the basis that the Board’s decision to resume in-person instruction violated provisions of their collective bargaining agreement (“CBA”). In particular one of the provisions of the CBA provides that the Board and the Union will cooperate with one another in making reasonable provisions for the health and safety of its teachers. Additionally, the CBA provides that if a teacher believes that they are being required to work under unsafe or unhealthy conditions beyond the normal hazards of the job, then they have a right to file a grievance. In return, the Board argued that the court should dismiss the case because it lacked jurisdiction and because the Board had the express authority to make decisions regarding in-person instruction.

In reaching its decision, the court looked to § 4 of the Norris-Laguardia Act, 29 U.S.C. § 104, which generally prevents courts from granting injunctive relief involving labor disputes. However, an exception to this general rule applies if the controversy involves a labor dispute, an evidentiary hearing is held, the underlying dispute is subject to the arbitration procedure of the collective bargaining agreement, and the basis for injunctive relief are satisfied.

In evaluating the union’s claim, the court relied on previous Supreme Court precedent which held that a union’s claim that a board failed to provide them with notice and opportunity to discuss the closure of a facility fell under the exclusive jurisdiction of the State Employment Relations Board (“SERB”). State ex rel. Wilkinson v. Reed, 99 Ohio St.3d 106 (2003). The court in this particular case analogized the union’s failure to cooperate claim to the claim in Reed. Thus, the court concluded that SERB had exclusive jurisdiction to the claim and it therefore was not subject to the arbitration process. Because they were not subject to the arbitration process, the union’s claim did not meet the exception to the general rule that prevents courts from granting injunctive relief in a labor dispute.

The teachers in this case also filed a grievance due to their belief that they were being required to work under conditions which were unsafe or unhealthy. Though the arbitration process with respect to this grievance was proceeding, the union asked the court to issue a status quo injunction while the grievance was being resolved. In evaluating this claim, the court looked to a particular section of the CBA which stated that the Board is invested with the governmental authority and control of Cincinnati Public Schools. The provision further stated that the Board’s authority includes the authority to make rules, regulations and policies that are necessary for the government of schools, the employees, and their students.

This court further noted that the Ohio legislature has vested superintendents and boards of education with almost unlimited reasonable authority to manage and control the schools within their districts. Courts will not interfere with grant of discretionary power, so long as it is exercised in good faith and is not a clear abuse of discretion. Here, the court determined that the return to in-person instruction clearly fell within the authority granted to the Board. Thus, the court concluded that the claims brought by the Union were not arbitrable and the court could not issue an injunction.

What this means for your district?

Ohio superintendents and boards of education have the ultimate decision-making authority in determining whether their schools return to in-person instruction. Courts recognize that Ohio has granted superintendents and boards of education with almost unlimited authority to manage and govern the schools within their districts. So long as boards and superintendents exercise this power reasonably and in good faith without violating the laws of the state of Ohio, courts will seldom interfere.  

Constitutional Right to a Basic Minimum Education

Does a Constitutional right to a basic minimum education exist? The question has been repeatedly discussed by the Supreme Court of the United States but never decided. For states under the jurisdiction of the Sixth Circuit Court of Appeals, including Ohio, Michigan, Kentucky, and Tennessee, the Sixth Circuit recognized such a right for twenty-six days. A panel of the Sixth Circuit recognized the existence of such a right on April 23, 2020, and the decision remained in place until it was vacated on May 19, 2020. Prior to an en banc panel of the Court providing definitive guidance on the issue, the case settled and has been dismissed. Thus, presently, no such constitutional right is recognized. It is anticipated, nonetheless that this argument will be made in future cases with the vacated decision serving as a roadmap for making such a claim.

In Gary B. v. Whitmer, Nos. 18-1855/1871 (6th Cir. 2020), students in several of Detroit’s worst-performing public schools claimed that the conditions in their schools deprived them of a basic minimum education, meaning one that provided a chance at foundational literacy. The plaintiffs attributed the substandard performance to poor conditions within their classrooms, including missing or unqualified teachers, physically dangerous facilities, and inadequate books and materials. Plaintiffs based all of their claims on the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Plaintiffs argued that while other students receive an adequate education, they did not in violation of their Constitutional rights.

In a 2-1 split opinion authored by Judge Clay and joined by Judge Stranch, the panel agreed that the Plaintiffs had “been denied basic minimum education, and thus have been deprived of access to literacy.” The majority opinion observed:

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.

After a judge in the Sixth Circuit requested a poll of the other judges in the circuit, on May 19, 2020, a majority of the Judges in the Sixth Circuit in regular active service voted for a rehearing of the case, en banc, or in front of all the judges in the Circuit. By rule, the grant of a rehearing en banc vacated the April 23, 2020, decision by Judge Clay. Thus, the recognition of the fundamental right to a basic minimum education proved to be short-lived. 

Prior to the en banc review of the case, on June 10, 2020, the Court granted a motion to dismiss the appeal on the basis that the case had settled. As part of the settlement, Governor Whitmer of Michigan agreed to:

  • Propose legislation providing Detroit Public Schools with $94.4 million for literacy programs.
  • Send $280,000 for seven students to participate in “high-quality literacy programs.
  • Pay $2.7 million to Detroit schools for literacy programs.
  • Have the state department of education advise districts on literacy programs to improve reading proficiency and reduce economic, racial, and ethnic disparities.

While the Gary B. case is settled with the underlying decision vacated, the issue of the existence of a Constitutional right to basic minimum education is not. We expect this issue to be raised in future litigation with reliance upon the reasoning from the 2-1, albeit vacated, decision. 

UPDATE: Sixth Circuit Finds a Constitutional Right to a Basic Minimum Education

On May 6, 2020, we reported to you that a panel of the U.S. Court of Appeals for the Sixth Circuit issued a decision holding that there is a fundamental right to a “basic minimum education” that is potentially violated when the state fails to provide adequate public schools. As a follow up to that post, on May 19, 2020 the Sixth Circuit vacated that ruling so that it can be considered by the entire Sixth Circuit bench. The ruling allowed students from five of the lowest-performing schools in Detroit to sue Michigan officials over their inability to read. There was some speculation about whether a rehearing before the entire Sixth Circuit bench (en banc) would be sought by the Attorney general, who had publicly praised the decision. However, the Sixth Circuit did so itself (sua sponte) under rules granting it the power to vacate panel decisions for consideration by the entire bench. This is done so where there is a potential for “a precedent-setting error of exceptional public importance” or direct conflict with Sixth Circuit or Supreme Court precedent. As reported in the blog post, the U.S. Supreme Court has not expressly held that the U.S. Constitution provides a fundamental right to a 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.” The effect of the ruling is that the opinion of the three-judge panel is vacated and of no force and effect. We will keep you posted on any developments in this important case.

Ensuring Graduation Ceremonies Are Accessible to All Viewers

In light of ongoing bans on mass gatherings, many school districts are moving to a graduation ceremony plan that involves a video or other online elements (e.g. video, PowerPoint, etc.). While virtual commencements may be almost unheard of prior to this spring, there are long-standing legal requirements that apply to this format just as they would to traditional, in-person ceremonies.

Traditional graduation ceremonies include many features aimed at making them accessible to students, family and friends, and school employees who have disabilities. Because school facilities are already subject to Americans with Disabilities Act design requirements everything from the parking lots, building entrances, restrooms, and seating areas are already accessible. Specific to the graduation ceremony itself, a school might have wheelchair ramps to access the stage, a sign language interpreter, and other accommodations.

The same anti-discrimination laws that inform the accommodations described above also apply to online services offered by school districts. In recent years, disability rights activists have filed hundreds of complaints regarding school district website accessibility. In many cases, the activists had no connection at all to the district against which the complaint was filed. They were simply scouring the internet for websites with obvious accessibility concerns. It is entirely possible that a similar approach may be used in relation to this year’s virtual graduation ceremonies. In any event, it makes good sense for districts to address website accessibility, irrespective of the pandemic. 

As such, and in our experience assisting school districts that were subject to website accessibility complaints, it seems that there are certain “red flags” that may have caused some websites to be targeted for complaints while others were not. Applying this lesson to virtual graduation ceremonies, there are some basic steps that can still be taken to reduce the risk of receiving an investigation letter from the Office for Civil Rights:

  • Investigate practical captioning options: Many online platforms have captioning already built-in, so it may just be a matter of enabling this feature and editing the automatic captioning. Captioning can stand in the place of a sign language interpreter if that is normally offered at your district’s ceremonies. Of course, many graduation ceremonies in the past did not have an interpreter and this has not caused widespread complaints. The idea now is to investigate what options are available in the online platform that you use for the ceremony and to use available tools to reduce your risks.
  • Pay attention to color contrast: School colors are a source of pride and frequently used in important rituals like graduation. However, if the school colors are low contrast (e.g. red and orange, green and blue) it may cause problems for people with vision-related disabilities. Consider pairing neutral alternative colors like black or white with a school color to avoid low contrast pairings.
  • Ensure announcements of the ceremony details are formatted for screen reader use: People with vision-related disabilities sometimes use screen readers to access electronic written information. Some file formats are less screen reader-friendly. PDF files and other picture type files can be problematic. Simpler can be better when it comes to conveying information in writing. A basic email or attached Word document is less likely to cause challenges.
  • Make access to the virtual ceremony accessible: A common challenge with school websites is that they are not easily navigated by individuals with physical challenges that prevent them from using a mouse. Consider emailing students and their families a link that goes directly to the virtual ceremony. The more steps that must be taken to get to the virtual ceremony, the more risk there is of an accessibility issue (e.g. a drop-down menu that cannot be easily accessed using keyboard tabbing, a link button that is not tagged, etc.).

The efforts taken by school districts to offer something special for seniors graduating under the current conditions are admirable. Paying close attention to accessibility for people with disabilities will help ensure that these celebrations do not lead to legal headaches down the road. 

Ohio Supreme Court Upholds School District Takeover Law

On May 13, 2020, the Ohio Supreme Court upheld House Bill (HB) 70, which was passed in 2015 by the 131st General Assembly. HB 70 is a school takeover bill that gave sweeping powers to an appointed CEO in districts that struggled to meet overall state report card requirements. 

The Youngstown City School District Board of Education argued that HB 70 was unconstitutional. HB 70 originally authorized schools to create community learning centers where academic performance was low. It was considered by the House on three separate days, after which it was ultimately passed by the House and went to the Senate for consideration. 

The Senate considered the bill on three separate days also but made two amendments, one of which modified the structure of academic-distress commissions. Among other items, the amendment included a requirement that for any district that has received an overall grade of “F” on its state report card for three consecutive years, a commission must appoint a CEO who has “complete operational, managerial, and instructional control” over the school district. The Senate passed the amended bill and the House quickly concurred in the Senate amendments. The Governor signed the bill into law.

The Board of Education (along with its employee unions) sought a declaratory judgment and permanent injunction by challenging the constitutionality of the bill and the legislative process in enacting it. The Board of Education argued that the law violated an Ohio Constitutional provision that requires that every bill “be considered by each house on three different days,” and another provision that states that a city school district has the power “by referendum vote to determine for itself the number of members and the organization of the district board of education.”

The trial court ruled against the Board of Education, as did the Tenth District Court of Appeals. The Ohio Supreme Court agreed to hear the Board of Education’s appeal.

The Supreme Court found that the three-consideration provision in the Ohio Constitution was not violated. The Board of Education argued that the bill was substantially changed in the Senate from its original purpose of creating community learning centers. The Board of Education claimed that the amended bill must also satisfy the three-consideration provision of the Constitution. The Supreme Court disagreed. It found that a bill need not contain the exact same language in each of its three readings to be valid. “[A]mendments which do not vitally alter the substance of a bill do not trigger a requirement for three considerations anew of such amended bill.” Only where the subject or proposition of a bill is wholly changed must an amended bill satisfy the three-consideration provision. 

In this case, the House and Senate each considered HB 70 on three different days. The Supreme Court found that the amended bill had a common purpose to the original bill of seeking to improve underperforming schools. Therefore, the amended bill that included the additional academic-distress commission provisions did not also need to satisfy the three-consideration provision of the Constitution.

As for the Board of Education’s other argument, the Supreme Court found that the Ohio Constitution governs the size and organization of school boards, not the power and authority conferred to them. Although HB 70 removed most of the Board of Education’s power, the Supreme Court found that the Constitution does not prevent that. Accordingly, the Supreme Court upheld HB 70 and affirmed the judgments of the lower courts that ruled against the Board of Education.

HB 70 does not apply to the vast majority of Ohio school districts. However, it has been declared constitutional and will remain valid Ohio law until such time as the legislature amends it. Recent legislation has been proposed seeking to end school takeovers such as this (SB 89) or dissolve the academic-distress commission overseeing Lorain City Schools (HB 9). Neither of those legislative attempts have become law. Members of the General Assembly have indicated that they will continue to address the status of academic-distress commissions and school takeover. We will monitor those efforts and keep you updated.