Sixth Circuit Finds a Constitutional Right to a Basic Minimum Education

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

Ohio Ethics Commission Finds Potential Violation of Ethics Law

A new formal opinion of the Ohio Ethics Commission was issued on April 17, 2020. It concludes that disclosures of discussions of a public body held in a properly-convened executive session that are legally confidential (pursuant to a statute) or designated as confidential reasons that are necessary and warranted may be found to be a violation of R.C. 102.03(B) of the ethics laws.

That statute prohibits a public official from recklessly disclosing or using confidential information acquired in his or her role as a public official without authorization, and is punishable as a criminal offense, a first-degree misdemeanor. The statute states:

No present or former public official or employee shall disclose or use, without appropriate authorization, any information acquired by the public official or employee in the course of the public official’s or employee’s official duties that is confidential because of statutory provisions, or that has been clearly designated to the public official or employee as confidential when that confidential designation is warranted because of the status of the proceedings or the circumstances under which the information was received and preserving its confidentiality is necessary to the proper conduct of government business.

The Commission emphasized that the decision about whether a public body that has designated an executive session discussion as confidential is legally confidential is made on a case by case basis. The confidentiality designation of the public body would be evaluated on the basis of the status of the proceedings or the circumstances under which the information was received, and whether preserving the confidentiality of the information is necessary to the proper conduct of government business.

If there is a particular statute that makes a certain discussion confidential, it is presumed to be confidential, and the release of that information is governed by the terms of that statute.

The Commission noted that documents reviewed in executive session do not become confidential as a result of a confidentiality designation or simply because they were reviewed in executive session. These documents must be evaluated as to whether they are public records pursuant to existing public records law.

This formal opinion is not exactly a new position of the Commission. A 1986 informal opinion reached the same conclusion. However, the issuance of the formal opinion makes it applicable to all Ohio public officials. While not everything discussed in executive session is statutorily confidential, it is a good reminder that certain discussions of the public body are entitled to confidentiality that may be enforced by law, and violations of that confidentiality may in some cases carry criminal sanctions under Ohio’s ethics laws.

Revised Orders Issued by the Ohio Department of Health Director

On April 30th, 2020, the Ohio Department of Health Director, Dr. Amy Acton, issued two revised orders that will impact school operations at least in the short term. These orders will cover school operations through June 30th at a minimum.

It’s a wrap – concluding school operations for 2019-2020.

The first order directs schools to remain closed to students through June 30th, 2020. However, the Director clarifies that the order does not prohibit administrators, teachers, staff, vendors, or contractors from showing up for work. Rather, administrators are tasked with determining who will have access to the buildings and are encouraged to promote practices such as social distancing and frequent hand washing. The order encourages administrators to consider remote work options when possible.

The order also specifically excludes a number of activities and events that may occur at schools, such as voting, food services, health services, and charitable works, as well as “targeted” and other educational programs and activities. While schools have the discretion to determine what types of programs and services may be provided, it should do so with caution and only after consulting with the local health department and legal counsel. Further, a school district must obtain written approval from the local department of health before the activities may be held and then must submit a copy of the written approval to both the Ohio Department of Health and the Ohio Department of Education.

Schools are expected to follow the social distancing guidelines published by the Ohio Department of Health while conducting activities. Local law enforcement and other officials who are tasked with enforcing the order are also directed and encouraged to contact local health departments with questions and for opinions about implementation.

Because there are many practical and legal implications as you determine what operations will resume, it is very important to consult with your administrators, local health departments, and legal counsel as you make plans. Click here to review the order.

Business as Usual? Not so fast!

The second order, which will remain in effect through May 29th, 2020, addresses how residents and the majority of businesses will operate during much of May. The stay-at-home requirement remains for residents, although they are permitted to engage in business activities authorized by the order. Individuals who are returning to the state are encouraged to self-quarantine for fourteen days.

The order allows most businesses to resume operations as long as they meet workplace safety standards. These standards changed several times, but as of May 1st included the following:

  • Employees must wear face masks or “face coverings” at all times unless an exception applies; it is recommended that visitors do as well.
  • Employers and employees will conduct daily health assessments to determine if someone is “fit for duty.”
  • Employees who report for work will maintain social distancing (people will stay 6 feet apart) and will also sanitize and wash hands regularly.
  • Worksites will be cleaned throughout the workday (for high touch surfaces), as well as at the close of each day or between shifts.
  • To meet social distancing guidelines, buildings will limit the number of visitors and employees to 50% of the building capacity established by the fire code.

There are specific rules about face coverings and masks, including when employees are not required to wear them in the workplace. The exceptions include the following:

  • Masks/coverings are prohibited by law or regulation.
  • Masks/coverings are in violation of a documented industry standard.
  • Masks/coverings are not “advisable” for health reasons.
  • Masks/coverings violate a business’s documented safety policy.
  • Employees are working alone in an area and coverings are therefore not necessary.
  • There is a practical/functional reason why an employee should not wear a covering or mask.

At a minimum, facial masks or coverings should be made of cloth and should cover an individual’s mouth, nose, and chin. An employer must be able to provide written justification for any exception if requested to do so.

Employers are expected to “immediately report” when any employee is diagnosed with COVID-19 and will work with the local department to identify others who may have been exposed. They are also expected to send employees home when they show signs of the illness. When possible, a building site will be closed until it can be professionally cleaned. Buildings may be reopened in consultation with the local health department.

Paragraph 20 of the order contains a more specific list of steps that businesses are expected to comply with as operations resume, broken down by type of business. The order specifies requirements for manufacturing, construction, consumer retail and services, and general office environment. Of course, schools are governed by the separate order summarized above.

Finally, the order includes a list of businesses that must remain closed for the time being, including schools (at least as to student attendance), most childcare services, beauty salons, entertainment and recreation facilities, and restaurants/bars. These businesses may only engage in minimum basic operations as defined by the businesses.

Click here to review the order.

Possible Challenge to Orders Being Proposed in the House

State Rep. John Becker of Clermont County plans to introduce a bill that would repeal the current health orders, and make any future orders issued by the Director of Health advisory unless and until those orders are approved by the General Assembly. The bill would focus on speeding up Ohio’s return to normal business operations. Stay tuned for more information about this and other efforts to change the state’s direction.

We Can Help!

Many challenges and opportunities continue to present themselves during this pandemic – it is critical that you rely on credible sources of information to remain up-to-date. It is also important for you to consider your district’s specific needs as you develop plans, and remember that there is no “one size fits all” approach. Make sure you discuss your details and situation with legal counsel to determine how you can effectively implement these and other orders that arise.

Courts Continue to Uphold Political Subdivision Immunity in Favor of School Boards

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

COVID-19 Update: Unemployment Coverage for Public Entities

Many public employers are considering staffing adjustments in light of the coronavirus and its impact on available work. For those employees not covered under contracts that must be paid in the case of an “epidemic or other public calamity” pursuant to RC 3319.08(B) and 3319.081(G), layoffs are being contemplated. In order to have all the information on the financial impact of such a decision, the public employer should consider whether it is a “contributory employer” or a “reimbursing employer.” 

Generally speaking, public employers are reimbursing employers. Essentially, reimbursing employers are self-insured and will be billed dollar-for-dollar by the Ohio Department of Jobs and Family Services for claims paid.   Public entity employers who have elected to become a contributory employer have paid unemployment tax. Contributory employers will have their claims mutualized with other employers in the state and will not have to reimburse on a dollar-for-dollar basis. Determining if the public entity is a contributory employer or a reimbursing employer will be necessary to determine how much will be saved via staffing reductions.

The Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) provides that reimbursing employers may be reimbursed for one-half of the amounts paid into a state unemployment trust fund between March 13, 2020, and December 31, 2020.

If you have any questions regarding unemployment compensation issues, please reach out to any of the Ennis Britton lawyers.

National Initiative to Address Sexual Assault in Schools

Last week, U. S. Secretary of Education Betsy DeVos announced plans for a new compliance review and data collection initiative to address the rise in sexual assaults in K-12 education, this time targeting the actions of adult employees toward school students.  Among other things, the new initiative will implement provisions to prohibit public schools from reassigning employees accused of sexual assaults against students. 

Asserting that “No parent should have to think twice about their child’s safety while on school grounds,” DeVos directed the Office for Civil Rights to lead the initiative to examine sexual assault through several avenues, including the following:

  • OCR will focus on raising public awareness of the issue of sexual assault in K-12 schools, including making information on the issue available to educators, school leaders, and families.
  • OCR will conduct nationwide compliance reviews to examine how sexual assault allegations are handled under Title IX, with special emphasis on sexual incidents involving teachers and school staff. It will then become OCR’s job to work with districts to correct any compliance concerns.
  • OCR will conduct Data Quality Reviews (DQRs) of the sexual offenses data including sexual assaults, as submitted by school districts through the Civil Rights Data Collection (CRDC). In doing so, OCR will partner with the National Center for Education Statistics (NCES) and support districts in accurately recording and reporting incidents of sexual assault/sexual offenses through the CRDC.
  • For the 2019-2020 data collection, OCR has proposed collecting more detailed data on sexual assault. The proposed data collection includes incidents perpetrated by school staff or school personnel.  If adopted, the inclusion of this data would make the CRDC collection the first universal collection to gather such data systemically for individual schools.

This is the second nationwide initiative announced by the OCR within the last 13 months.  The present announcement comes in the wake of OCR’s recent resolution of two sexual harassment complaints involving Chicago Public Schools. However, Secretary DeVos insists the issue is widespread, stating “We hear too often about innocent children being sexually assaulted by an adult at school.”  Her declaration is supported by 2015-2016 CRDC reports recording more than 9,700 incidents of sexual assault, rape or attempted rape in public elementary and secondary schools.  The Agency additionally reports the problem is “fifteen times greater than a decade ago.” The reporting as referenced does not break down the number of adults directly involved in such allegations but relate to a companion announcement by the Office of Elementary and Secondary Education that it will publish an extensive study on state and local measures to prevent the “pass the trash” phenomenon in dealing with adults accused of sexual offenses against students.