by Bronston McCord | May 22, 2023 | General, Legislation, School Management, Student Education and Discipline
Matthews v. Springfield-Clark CTC Bd. of Edn., 2023-Ohio-1304.
Springfield Clark CTC terminated a custodial supervisor for a variety of reasons, including, going into his supervisor’s office and reviewing, copying, and removing documents, all of which were supported by video. The employee had been the subject of prior discipline and had been placed on an improvement plan which was never started.
During the termination process, the employee was given a pre-disciplinary hearing where he was provided with details of all of the allegations. He was also given an opportunity to provide evidence in his defense. Following this meeting, the Superintendent recommended termination, and a hearing was held before the Board of Education from which a transcript was created. The employee did not call any witnesses. Following the hearing, the Board of Education terminated the employee.
The employee appealed to the Common Pleas Court which overruled the termination. As the basis for this reversal, the trial court made several findings. First, the trial court ruled that an employee had a “presumption of innocence” and that the process violated “fundamental fairness” citing that it was the employer’s burden of proving the misconduct. In support, the trial court cited a passage from the letter from the Superintendent that stated “because the allegation of misconduct has not been disproven” and thus it is “determined to be an act of malfeasance”.
The trial court also took issue with the fact that the employee’s supervisor did not testify at the hearing, denying the employee his fundamental right of cross-examination.
Lastly, the trial court gave little to no deference to the Board of Education’s findings and decision, despite the wealth of evidence introduced at the hearing regarding past discipline, the video evidence provided, the Superintendent’s testimony, and the lack of credible evidence in the employee’s defense. Of note, the trial court stated that the Superintendent’s testimony was unreliable hearsay, despite accepting the employee’s introduction of unsupported hearsay testimony. The Board appealed the trial court’s decision.
The Court of Appeals found that all required due process was provided. He was given a pre-disciplinary hearing where he was presented with all allegations against him. He was given the chance to call witnesses and to be represented by an attorney. The Court of Appeals further stated that the standard applied by the trial court of a presumption of innocence was in error, stating the only burden on an employer is to provide evidence sufficient to justify termination. The trial court’s characterization of the language in the Superintendent’s letter was described as flawed reasoning.
Regarding the lack of testimony and ability to cross-examine, the Court of Appeals specifically stated that cross-examination is not an absolute requirement for due process.
As to the lack of deference, after reviewing the record, the Court of Appeals found the trial court gave no deference to the Board of Education’s credibility decisions and resolution of evidentiary conflicts, instead expressing the court’s view of what the discipline should have been. Thus, the Court of Appeals found the trial court erred and reversed the decision.
What this means to your district: It is absolutely pertinent that the appropriate process is followed. In this instance, that adherence allowed the District to obtain a positive result even after receiving a decision from the trial court that relied on “flawed reasoning.”
by Meghan Rimer, Law Clerk | May 22, 2023 | General, Legislation, School Management, Student Education and Discipline
Bell v. The Milwaukee Bd. of Sch. Dirs., 123 LRP 2649 (E.D. Wis. 12/21/22).
The Eastern District of Wisconsin recently dismissed an author’s copyright infringement claim against a high school basketball coach and school district finding in favor of the school district’s fair use defense.
Dr. Keith Bell, author of the book “Winning isn’t normal” sued a high school basketball coach and school district after the coach retweeted a famous excerpt from the book. Bell alleged that not only did the coach violate the copyright of the book as a whole when he retweeted the passage, but separately violated the copyright of the famous “Winning isn’t normal” passage from within the book as well.
The school district asserted that the retweet was fair use under the Copyright Act of 1976. Fair use, which is a defense to copyright infringement claims, allows for the use of copyrighted work, under certain conditions, without permission of the copyright owner. Under the Copyright Act, a court must consider four factors when applying the fair use doctrine: (1) the purpose and character of the use, including whether it’s for commercial or nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for the copyrighted work.
The court found that while the coach’s retweet copied the entirety of a “somewhat creative passage,” his action was balanced against the fact that the passage was freely available on the internet and the author’s website. Additionally, the court noted that while the retweeted passage was the “heart” of the book, the copied passage was a relatively small portion of the book and was entirely noncommercial. Furthermore, the court found that the retweet did no damage to the author’s financial position, and that the retweet may even help the author’s position by increasing the public’s interest in the book as a whole. Thus, the District Court held that the coach’s retweet of the “Winning isn’t normal” passage was fair use and the author’s claim had to be dismissed.
What does this mean for your district? To avoid copyright infringement claims, districts should train their staff on how to avoid using or sharing copyrighted material without permission. With the rise of school districts and district employees using social media, school districts should ensure that any social media training should include what may and may not be shared to avoid copyright infringement claims. Fair use is not as simple as some believe in terms of educational use and so while the coach’s actions were vindicated here, caution is warranted.
by Meghan Rimer, Law Clerk | May 22, 2023 | General, Legislation, School Management, Student Education and Discipline
Waln v. Dysart Sch. Dist., 54 F.4th 1152 (9th Cir. 2022).
In 2019, Dysart School District prohibited a student from decorating her graduation cap. The school district had a graduation policy that prohibited students from decorating their graduation caps; however, the student had requested a religious exemption. The student, a member of the Sisseton Wahpeton Oyate tribe of the Sioux Nation, wanted to decorate her cap with an eagle feather that had been blessed in a religious ceremony and was to be worn “in times of great honor.” The district, however, rejected her request. When the student showed up to graduation with the decorated cap, school officials did not let her inside the venue. However, school officials permitted other students into the venue who had decorated caps that also violated the dress code. For example, the district allowed one student who decorated their cap with a breast cancer sticker inside the venue.
The student subsequently brought claims against the district, alleging that the district violated her freedom of speech and religion. Specifically, the student claimed that prohibiting her from wearing the non-secular decorated graduation cap, while other secular decorated caps were permitted, violated the free exercise and speech clause of the United States Constitution.
The Ninth Circuit first analyzed the free exercise claim. The court noted that if the district did not enforce the policy to exclude a student’s secular message, such as the breast cancer sticker, then, without some appropriate justification, the district could not enforce its policy against the plaintiff. The court thus held that because the school district did not apply the policy “to the same degree” towards all students but rather executed the policy in a “selective manner,” the district potentially violated the free exercise clause of the U.S. Constitution.
The Ninth Circuit then turned to the free speech claim. The court emphasized that school districts may not engage in viewpoint discrimination, which occurs when the government restricts speech on the basis of the specific “ideology or the opinion or perspective of the speaker.” The court ultimately found that the school’s general policy of prohibiting decorated caps was not viewpoint discrimination. The court held that on its face, the policy is viewpoint neutral because “it prohibits all speech from all students on all graduation caps at the ceremony.” However, even if a policy is viewpoint neutral on its face, it can still violate the Constitution when not applied uniformly. Because the school district, in this case, applied the viewpoint neutral policy in a selective way, the school did infringe on the student’s freedom of speech.
Thus, the Ninth Circuit ultimately determined that the school district’s actions were likely a violation of the free exercise and speech clauses of the Constitution, holding that “general applicability requires, among other things, that the laws be enforced evenhandedly.” The case was remanded to the trial court.
What does this mean for your district? There remains support for the conclusion that a court would find that a policy that bans all decorations from all caps is viewpoint neutral and thus not an infringement on students’ first amendment rights. However, if your district intends to have such a policy, officials should be trained to apply the policy evenhandedly in order to refrain from violating a student’s rights.
by Gary Stedronsky | Feb 22, 2021 | General, Student Education and Discipline
Written by: Liz Hudson
The U.S. Supreme Court recently agreed to hear a First Amendment case about student social media use related to extracurricular activities. In June, 2020, the Third Circuit Court of Appeals affirmed a lower court’s ruling in favor of a student who was removed from the cheer team after making offensive social media posts.
Frustrated with her lack of advancement on the cheer squad, the freshman student posted to Snapchat “F*** school f*** softball f*** cheer f*** everything” to her 250 followers.When peers on the cheer team reported the message to a coach, the student was removed from the team, but later told she could try out again the following year. Her parents filed suit in a federal court on her behalf arguing that MAHS violated her First Amendment rights.
The school district contends that U.S. Supreme Court precedent justified its disciplinary action, especially a school’s prerogative to discipline students’ use of vulgar or plainly offensive speech established in Fraser.1 School policy elevated expectations of behavior for student athletes, preventing them from tarnishing the school’s image. Furthermore, cheer team rules discouraged “foul language” and required students to act with respect for the school, coaches, and others on the team. Negative internet posts about cheer were also prohibited.
The Third Circuit decided for the student because the Snapchat post was off-campus speech, and, thus, Fraser did not apply. It refused to give schools discretion to regulate vulgar speech in extracurricular activities while outside of school. The court also extended previous precedent — ultimately concluding that Tinker, which allows schools to discipline disruptive speech, “does not apply to off-campus speech.” The court determined that students’ vulgar social media posts about school or school activities fall outside parameters of school discipline. Though the court recognized possible discipline for violent posts, it punted that question to another day.
On January 8, 2021, The U.S. Supreme Court agreed to hear the case. The question certified by the Court was:
“Whether Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.”
Legal arguments have yet to be filed, and oral arguments have not been scheduled. Look for updates from Ennis Britton as this case progresses.
What does this mean for your district?
Schools struggle to determine appropriate student social media regulation, and courts have offered conflicting First Amendment guidance. While the Third Circuit decision is not binding for schools in Ohio, the Supreme Court decision will be, and Ohio schools will have to abide by it when it is issued. In the meantime, Ohio schools should consider using restraint when disciplining students for social media posts outside of school, even those that could potentially disrupt the education environment or extracurricular activities.
by Jeremy Neff | Mar 25, 2020 | General, Special Education, Student Education and Discipline
The long-running Doe v. Ohio Department of Education litigation was back in the news earlier this month. The settlement became final and effective nearly three decades after the lawsuit was initially filed. Ennis Britton previously notified clients of the proposed settlement in December when the Ohio Department of Education’s Chief Legal Counsel sent a notice to districts that a proposed settlement has been reached. To be clear, no individual school district was a defendant in this case. Defendants included the State of Ohio, the Governor, the State Superintendent of Public Instruction, and the Ohio Department of Education. The plaintiffs – parents of students with disabilities and the students themselves – alleged that the defendants failed to ensure that students with disabilities were adequately educated in compliance with the law.
A hearing was held on February 11, 2020, to determine whether final approval would be given to the proposed settlement that circulated in December 2019. The settlement has been approved and took effect earlier this month. The settlement covers a five year period and will focus on eleven priority districts (Canton City, Cleveland Metropolitan, Columbus City, Cincinnati Public, Toledo Public, Dayton Public, Akron Public, Youngstown City, Lima City, Zanesville City, and East Cleveland City School Districts). During the settlement period, ODE will develop a plan to improve inclusion and outcomes and will implement and monitor the implementation of the plan in the priority districts.
Ennis Britton’s Special Education Team anticipates it is very likely that ideas and expectations from the plan for the eleven priority districts will have broader application in the long run. Thus, even districts that are not initially prioritized by the settlement are likely to feel the effects of the settlement. It will be important for all school districts to monitor the implementation of the settlement and to advocate for both reasonable expectations and appropriate additional funding to support whatever aspects of the settlement plan are given broader application to all of Ohio’s school districts.
Ennis Britton’s Special Education Team will continue to update our clients on the implementation of the Doe settlement.
by Erin Wessendorf-Wortman | Mar 12, 2020 | COVID-19 (Coronavirus), Special Education, Student Education and Discipline
It should come to no one’s surprise that the state and federal laws do not allow for exceptions to the required timelines for ETRs, IEPs, etc. As discussed in other posts, in December 2009, in response to the H1N1 pandemic, the U.S. Department of Education issued a memo titled “Guidance on Flexibility and Waivers for SEAs, LEAs, Postsecondary Institutions, and other Grantee and Program Participants in Responding to Pandemic Influenza (H1N1 Virus)” which plainly stated that the U.S. Department of Education would not waive the requirements for school districts to evaluate and assess during school closures. While the U.S. Department of Education issued a “Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak,” the Department did not issue any comments regarding IEP and 504 timelines at this time.
The Ohio Department of Education has issued its own Considerations for Students with Disabilities During Ohio’s Ordered School-Building Closure originally on March 17th, and updated on March 27th.
Proper planning on your school district’s and case manager’s part will be essential in determining how your school district needs to act as schools are currently (as of March 30, 2020) closed until May 1st during which you would may be required to have an ETR or IEP meeting.
My school district is in the middle of conducting an ETR on a student. Do we continue with this evaluation?
Based on the Guidance and Considerations, you continue with the evaluation of the student. Your district may want to consider how much of the evaluation and assessments can be held remotely. If you can hold the ETR evaluations remotely, then you can hold the ETR meeting during the time of the closure via telephonic or video conference means. If pieces of the evaluation cannot be conducted because school is closed, the evaluation would need to be delayed and a prior written notice for the same should be sent. If you have not yet conducted the evaluation and assessments, another option to consider is waiving the reevaluation and delaying it until return to the in-person education with parental consent or to conduct a records review. The guidance from the Ohio Department of Education indicates that all services should still be provided if parents consent to waive reevaluation.
Are we required to hold in-person meetings for ETRs and IEPs during a school closure?
If school closes, IEP teams are not required to meet in person. However, according to the Guidance, schools must continue working with parents and students with disabilities, to develop required documents – ETRs, IEPs, 504s, etc. If a plan or evaluation for a student expires during the time of school closure due to COVID-19, IEP/504 teams should offer to meet via telephone conference or videoconference with the parents. School personnel should attempt to determine the specific services that can be provided during the ordered school-building closure period. If the parent does not agree with meeting via telephone or video conference, then the meeting should be delayed until school reopens according to the Guidance.
What about evaluations and plans developed under Section 504?
The same principles apply as discussed above for ETRs and IEPs to those activities conducted by schools for a student with a disability under Section 504 according to the Guidance. You will want to review your school district’s 504 polices to determine 504 plan review and reevaluation timelines, as there is no requirement in federal law for how often must occur.
How do we help our staff in planning for this potential?
School district personnel should look at their evaluation and IEP timelines to determine which items may expire during the next few weeks/months of the 2019/2020 school year. It would be prudent to plan how items may be advanced or to begin discussions now with parents on what the plan will be in the event of a school closure.
