Topical Highlights - Education ©     Coverage   Help   Search Westlaw Layshock ex rel. Layshock v. Hermitage School Dist., (C.A.3 (Pa.)) February 8, 2010: Student Discipline - Suspension of student who created fake internet profile of principal violated student's First Amendment rights. The school district's suspension of a high school student for creating a fake MySpace profile of the school's principal violated the student's First Amendment rights. The student created the profile at his grandmother's house during non-school hours, and the only school resource that was even arguably involved in creating the profile was a photograph of the principal that the student copied from the school district's website. Although the student subsequently accessed the profile from a school computer, there was no evidence that he engaged in any lewd or profane speech while in school. Moreover, the student's speech did not result in any substantial disruption of the school. Lafayette Parish School Bd. v. Ratcliff Const. Co., (La.App. 3 Cir.) February 8, 2010: Property and Contracts - School board did not acquire right to sue architects until it discovered damage, when five-year peremptive statute applied. The Louisiana Court of Appeal for Third District held that a parish school board did not acquire the right to sue an architectural firm for water damage to a middle school that the firm had designed until it discovered the damage. At that time, the governing peremptive statute provided for a five-year period, from acceptance of the work, to file a claim against an architect. The suit brought eight years after acceptance of the work, therefore, was untimely, even though the peremptive statute was not in effect at the time of acceptance. This decision may not yet be released for publication. Malcolm v. Honeoye Falls-Lima Educ. Ass'n, (W.D.N.Y.) February 8, 2010: Labor and Employment - Former school district employee stated racial discrimination claims against local affiliate of New York educators' union. A former school district employee stated 1981 and Title VII racial discrimination claims against the local affiliate of a New York state educators' union and individual affiliate employees. The employee alleged that she made defendants aware of alleged discriminatory conduct by the district. She also alleged that the defendants refused to provide her with representation in the disciplinary proceedings, forcing her to retain private counsel, and refused to file grievances on her behalf against the district in the same manner that it did, or would have done, for non-minority members. Mas v. Miami-Dade County School Bd., (Fla.App. 3 Dist.) February 8, 2010: Labor and Employment - Terminated county school board employee who prevailed at administrative hearing was entitled to be reinstated with back pay. A terminated county school board employee who prevailed at an administrative hearing relating to his termination was entitled to be reinstated with back pay. The employee's ability to request a hearing to appeal his termination was meaningless if the charges against him were dismissed but he was not reinstated with back pay. This decision may not yet be released for publication. Taylor v. District of Columbia, (D.D.C.) February 8, 2010: Disabled Students - Parent of disabled child failed to allege that district acted with bad faith or gross misjudgment in denying FAPE. The parent of a disabled child failed to allege that the District of Columbia acted with bad faith or gross misjudgment in denying a free appropriate public education (FAPE) to the child, as required to state a claim under the Rehabilitation Act. The facts as alleged only reflected the district's failure to timely conduct, review, or authorize the funding of an independent evaluation of the child. Lucas v. District of Columbia, (D.D.C.) February 8, 2010: Disabled Students - Parent of disabled child failed to allege that district acted with bad faith or gross misjudgment in denying FAPE. The parent of a disabled child failed to allege that the District of Columbia acted with bad faith or gross misjudgment in denying a free appropriate public education (FAPE) to the child, as required to state a claim under the Rehabilitation Act. The facts as alleged only reflected the district's failure to timely conduct, review, or authorize the funding of an independent evaluation of the child. Decotiis v. Whittemore, (D.Me.) February 8, 2010: Civil Rights - Speech therapist's speech to parents was not protected by First Amendment. A speech therapist was speaking in her capacity as a speech and language therapist for regional child development services, rather than as a citizen, when she provided information to her clients' parents about advocacy groups and urged them to contact groups to explore their rights regarding the provision of Extended School Year Services. Thus, her speech was not protected by the First Amendment, as required for the therapist's retaliation claim against the state director of Child Development Services of Maine based on termination of contract. The speech occurred while the therapist was acting as a therapist. The speech was directed at individuals she would not have encountered but for her relationship with the department. The subject of the speech related to her employment. The speech reflected special knowledge gained through her position as a contractor. State v. Best, (N.J.) February 8, 2010: Civil Rights - Reasonable grounds standard applied to search of student's vehicle. A public school administrator need only satisfy the lesser reasonable grounds standard, rather than the probable cause standard, to search a student's vehicle parked on school property. Applying that standard in the case at bar, the New Jersey Supreme Court first held that the assistant principal of a public high school had reasonable grounds for searching the outer clothing of the first of two high school students. The assistant principal had met with the second student, who appeared to be under the influence of drugs and who indicated that the first student had given him a green pill, but the first student denied any wrongdoing. The court further held that the assistant principal's search of the first student's vehicle, which was parked on school property, was reasonably related in scope to the circumstances that had justified the assistant principal's search of the first student's outer clothing. After the first student had denied any wrongdoing, the search of the first student's clothing revealed three white capsules in his pants pocket but no green pills. The first student then admitted that he sold a white pill to a student for five dollars, claiming the pill was a nutritional supplement. The assistant principal next extended the search to the first student's locker, and, when that proved unsuccessful, to the first student's car. J.S. ex rel. Snyder v. Blue Mountain School Dist., (C.A.3 (Pa.)) February 7, 2010: Student Discipline - Student's suspension for off-campus internet speech threatening substantial disruption of school was not unconstitutional. Tinker applied to student speech, whether on- or off-campus, that caused or threatened to cause substantial disruption of or material interference with school or invaded the rights of other members of the school community. Thus, a student's suspension for her off-campus internet speech that had potential of causing substantial disruption of the school community did not violate the student's free speech rights. The student created, on her home computer, her school principal's profile containing a misappropriated photograph of him and profanity-laced statements insinuating that he was a sex addict and pedophile. The profile was rapidly disseminated to the school community and reached beyond mere criticism to undermine the principal's authority in challenging his fitness for his job. D & L Associates, Inc. v. New York City School Const. Authority, (N.Y.A.D. 1 Dept.) February 5, 2010: Limitations - General contractor's breach of contract claim against city's school construction authority was time-barred. A general contractor's breach of contract claim against a city's school construction authority accrued, and the one-year statute of limitations began to run, when the general contractor alleged in its notice of claim that the authority breached their contract. Filing of the notice of claim triggered the limitations period even if the general contractor did not know the precise amount of damages at that time, and even if no damages occurred until later. Bailey v. Blount County Bd. of Educ., (Tenn.) February 5, 2010: Labor and Employment - Teaching assistant could not be terminated during his contract term without adequate due process. Tennessee statutory provisions provided a nontenured, nonlicensed, classified teaching assistant at a high school with a reasonable expectation of continued employment through the end of his contract period, and accordingly, he had a sufficient property interest in his continued employment during the contract year that he could not be terminated during his contract term without adequate due process. The assistant was employed pursuant to a year-to-year contract, he was entitled to a minimum of fifteen days' notice that his contract would not be renewed, and he could be dismissed only for cause during the term of his contract. This decision may not yet be released for publication. Johnson v. University of North Carolina, (N.C.App.) February 5, 2010: Labor and Employment - Professor failed to exhaust administrative remedies provided by university and thus court lacked jurisdiction. A former assistant professor was required to exhaust the administrative remedies provided by the University of North Carolina (UNC) before bringing a court action for wrongful discharge, and thus, due to his failure to do so, the court lacked jurisdiction to consider his claims. The assistant professor appealed his termination decision to a committee, which upheld the termination, but then failed to undertake any further appeals, including appeals to the Board of Trustees and the Board of Governors, instead electing to institute a court action. While the assistant professor pointed out that the administrative procedures provided that a faculty member "may" appeal an adverse decision to the Board of Trustees but did not provide that a faculty member "shall" appeal, the court held that simply meant that he was not required to appeal the committee's decision, and did not affect the question of whether he was required to exhaust the remedies which UNC provided before seeking judicial review. Clark v. Riley, (C.A.11 (Ala.)) February 5, 2010: Labor and Employment - Alabama State University trustee was not exempt from statutory age limit on service. A trustee for the Alabama State University was not exempt from a statutory age limit on service. Although a new subsection added to the statute plainly stated that a then-serving trustee could not lose his seat on the board because of the age limit, such a plain reading would extend to all other limitations on the service of trustees found in the existing law, effectively giving lifetime appointments to then-serving trustees. The Alabama Legislature could not have intended such an absurd consequence. Levine v. Greece Cent. School Dist., (C.A.2 (N.Y.)) February 5, 2010: Disabled Students - Student failed to exhaust administrative remedies under the Individuals with Disabilities Education Act. Allegation that a school district official told a student's parents, in response to the father's statement that he thought an impartial hearing was needed, that there was not a need to hold such a meeting, and that the school district would get the student the help he needed, was insufficient to support estopping the school district defendants from asserting an exhaustion defense in the student's action alleging violations of the Individuals with Disabilities Education Act (IDEA), in relation to injuries he suffered while a student, and for the defendants' alleged failure to provide him with a free appropriate public education (FAPE). The student filed a complaint with the New York State Education Department (SED) after the official made the statement, showing that the student's parents did not rely on the official's statements. Segal v. St. John's University, (N.Y.A.D. 2 Dept.) February 4, 2010: Torts - A swim team member could not prevail on negligent hiring and supervision claims regarding her coach's training methods. Allegedly negligent actions of a university swim team coach were within the scope of his employment, thus defeating negligent hiring and supervision claims asserted against the university by a swim team member. The member claimed that her injury was caused by certain training methods employed by the coach. Liebman v. New York City Dept. of Educ., (N.Y.A.D. 2 Dept.) February 4, 2010: Torts - Denial of a worker's petition for leave to serve a late notice of claim was not an improvident exercise of discretion. Denial of an injured worker's petition for leave to serve a late notice of claim on a city department of education and others was not an improvident exercise of discretion. He offered no reasonable excuse for his failure to serve a timely notice, nor was there evidence that an accident investigation report was served upon any of the respondents. Moreover, he failed to establish that a delay of three and one-half months after expiration of the 90-day period would not substantially prejudice the respondents in maintaining their defenses on the merits. Lee v. Albany-Schoharie-Schenectady-Saratoga Bd. of Co-op. Educational Services, (N.Y.A.D. 3 Dept.) February 4, 2010: School Boards - Provisional employee was not entitled to expectation of continued employment. Former provisional employee of the Board of Cooperative Educational Services (BOCES), who had been appointed to a permanent competitive position with BOCES, but resigned to accept a provisional appointment to a different position, was not entitled to expectations of continued employment and other protections accorded to permanent employees under the Civil Service Law. In addition, the fact that the employee held her provisional appointment for 12 years, though far beyond the nine-month statutory limitation, accorded her no additional rights. Lara v. Unified School Dist. # 501, (C.A.10 (Kan.)) February 4, 2010: Labor and Employment - A school district employee was not constructively discharged, but voluntarily retired. A school district employee was not constructively discharged, but voluntarily retired, thus defeating his retaliation claims under the Family Medical Leave Act (FMLA), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). Superiors made only isolated remarks about his retirement plans, none of which where threatening or harassing. Although he alleged that they made age-related comments, those comments were also isolated. Muccia v. DiNapoli, (N.Y.A.D. 3 Dept.) February 4, 2010: Compensation and Benefits - Substantial evidence supported comptroller's decision denying additional service credit in calculation of retirement benefits. Substantial evidence supported the decision of the Comptroller of the State of New York denying a retiree's application to the New York State and Local Employees' Retirement System for additional service credit in calculation of her retirement benefits for time she spent as an occupational therapist for the school district. Although the retiree presented evidence that the school district directed and controlled her work, she was hired for the position of occupational therapist by a hospital, which was not a participating member of the Retirement System. In addition, she submitted time vouchers to the hospital and the hospital paid her according to the time submitted. Lastly, the hospital determined her rate of pay and provided her with income tax forms and no payroll deductions were made to the Retirement System. Copper ex rel. Copper v. Denlinger, (N.C.) February 4, 2010: Civil Rights - Student's procedural due process rights were not violated when school suspended him without a hearing. A student's procedural due process rights were not violated when the school suspended him without a hearing. The Supreme Court noted that there was an adequate remedy at state law in the form of statutes which allowed the student to appeal the suspension decision to the school board and then to the superior court. The student failed to appeal the suspension decision and there was no allegation that any such request to seek an appeal was ignored or denied. Ingle-Barr, Inc. v. Scioto Valley Local School Dist. Bd., (Ohio App. 4 Dist.) February 3, 2010: Property and Contracts - Contractor could not seek compensatory damages against school district under construction contract. The Ohio Court of Appeals has held that a construction contractor could not seek compensatory damages under construction contracts in its action against a local school district board for breach of a settlement agreement. The Court of Appeals found that the contractor's claim in the breach of settlement agreement action was based solely on the settlement agreement, and the contractor did not plead breach of the construction contracts. Jacobs v. Mostow, (N.Y.A.D. 2 Dept.) February 3, 2010: Labor and Employment - Hearing officer at disciplinary hearing had immunity for acts performed in his arbitral capacity. The hearing officer at a teacher's disciplinary hearing had immunity for acts performed in his arbitral capacity. Therefore, the trial court properly dismissed the teacher's breach of contract claim as asserted against the hearing officer. Parnigoni v. St. Columba's Nursery School, (D.D.C.) February 3, 2010: Labor and Employment - Former nursery school teacher stated invasion of privacy claim against school based on disclosure of status of husband as convicted sex offender. A former nursery teacher stated an invasion of privacy--false light claim against the nursery school, church, church administrative committee, church rector, and director of school under District of Columbia law. The defendants disclosed to parents of students at school and members of parish that teacher's husband was a convicted sex offender. The teacher alleged that the defendants sent two letters to over 3,500 households which contained statements that falsely represented or imputed that the teacher was dangerous to children, a threat to their safety and well being, and that parents should take action to ensure that children did not become victims of sexual abuse, and improperly attributed to the teacher conduct and characteristics that were false and highly offensive to a reasonable person as demonstrated, in part, by letter responses from recipients of letters from school. Federal Way School Dist. 210 v. Vinson, (Wash.App. Div. 1) February 3, 2010: Labor and Employment - Lying during course of an official investigation of professional misconduct was sufficient cause for teacher's discharge. A teacher's conduct in lying during the course of an official school district investigation of professional misconduct lacked any professional purpose and was sufficient cause for termination. The teacher admitted that he lied in response to certain questions posed to him by the investigator. Notwithstanding the teacher's concern with the impartiality of the investigator, the teacher's choice to lie during the course of the official investigation was improper. Los Angeles Unified School Dist. v. County of Los Angeles, (Cal.App. 2 Dist.) February 3, 2010: Finance - Property tax revenue allocated to Educational Revenue Augmentation Funds was counted in allocating pass-through payments. The provisions incorporating the Educational Revenue Augmentation Fund (ERAF) legislation into the statute governing the yearly apportionment of property tax revenues implemented an annual shift of property taxes to ERAF's for distribution to schools. The property tax revenue deemed allocated to ERAF's under these provisions necessarily qualified as property tax revenue to the school that received it under the statute requiring that pass-through payments must be allocated among taxing entities in proportion to the percentage share of property taxes each entity receives. This shift in apportionment to schools was implemented at the expense of cities, counties, and special districts. The Court of Appeal rejected the trial court's position that reading the statutes together resulted in the school district obtaining a "financial windfall" that the Legislature did not appear to have intended. U.S. v. Nobel Learning Communities, Inc., (E.D.Pa.) February 3, 2010: Disabled Students - Preschool children stated disability discrimination claim under Title III of ADA. Preschool children with disabilities at charter schools stated viable pattern or practice disability discrimination claims under Title III of the Americans with Disabilities Act (ADA). They alleged that the operator of the charter school network had disenrolled or denied enrollment to eleven disabled preschool children. They did not need to provide statistical information at the pleading stage to demonstrate the breadth of the operator's alleged policy. Washington v. Blackmore, (Conn.App.) February 2, 2010: Torts - Officer had probable cause to arrest school bus driver for assault. A town police officer had probable cause to arrest a school bus driver for assault. The officer arrived at the middle school in response to an emergency call from a student on the bus, stating that the bus driver had assaulted a passenger. The officer observed on one of the passengers redness on the left cheek and a bleeding scratch in his mouth. The school's principal informed the officer that students exiting the bus had reported that the bus driver had punched a student. A security guard at the school told the officer that a student had alleged that the bus driver had yelled and spit at the student and had hit and punched the student while on the bus. Plock v. Board of Educ. of Freeport School Dist. No. 145, (Ill.App. 2 Dist.) February 2, 2010: Security - School district's proposed policy of operating audio-recording equipment in special education classrooms violated Eavesdropping Act. The Appellate Court of Illinois has held that a public school district's proposed policy of operating audio-recording equipment in certain special education classrooms violated the Eavesdropping Act, which criminalizes the use of an eavesdropping device to record all or any part of a conversation without the consent of the participants. The Court concluded that the teaching that occurred in special education classrooms necessarily required ongoing oral exchanges between the teachers and the students, and, thus, constituted "conversation" under the Act. Moreover, the Act contained no express exemption for conversations in classroom settings. Also, the Act applies to any conversation between two or more people regardless of whether any party had an objective or subjective expectation of privacy. State ex rel. Brown v. Lemmerman, (Ohio) February 2, 2010: Records - Records requestor was father of children entitled to access to school records. A records requestor, a man serving a 15-year prison term, presented sufficient evidence showing that he was the father of four children whose school records he had requested. Thus the requestor was entitled to a writ of mandamus requiring disclosure of the records by the superintendent of the district where the children attended school. Although the district's own records were unclear as to whether the requestor was the children's father, the father presented court records showing that he had been found to be their father, in proceedings naming him as the children's emergency temporary residential parent and legal custodian. University of South Carolina v. University of Southern California, (C.A.Fed.) February 2, 2010: Marks and Logos - Cancellation of state university's trademark was not warranted. The University of South Carolina failed to establish that the initials "SC" uniquely pointed to the state of South Carolina. Thus, the cancellation of the University of Southern California's trademark using letters "SC" was not warranted under the Lanham Act. There was evidence that at least 16 other colleges and universities represented themselves as "SC." Distiso v. Town of Wolcott, (C.A.2 (Conn.)) February 2, 2010: Abuse and Harassment - District court failed to adequately address qualified immunity defense on motion for summary judgment on equal protection claims. The district court failed to adequately address the principal's and teachers' qualified immunity defense on the motion for summary judgment on the 1983 equal protection claims brought by the mother of the only African- American student in kindergarten and first grade classes. Denial of summary judgment would therefore be vacated and remanded for the district court to address in the first instance the scope and nature of the qualified immunity claims. The district court considered the questions of whether the allegedly violated right was "clearly established" and whether a "reasonable defendant" would have known that his conduct was unlawful with reference only to the broad proposition that the student was entitled to be free from a racially discriminatory environment. The district court did not discuss the steps taken by the defendants to investigate the mother's complaints of student-on-student racial harassment or the steps taken to respond to the complaints. Roe, ex rel. Callahan v. Gustine Unified School Dist., (E.D.Cal.) February 1, 2010: Athletics - School district exercised substantial control over players at football camp, as required for student's sexual discrimination and harassment claims. A school district exercised substantial control over the players at a football camp who harassed a student, as was required for the student's claim that the players' sexual discrimination and harassment violated Title IX. The football camp was sponsored and promoted by the school district's high school, its football coaches and administrators, was a core part of the football program, was under the supervision of high school teachers and coaches, the players were transported to and from the camp site by school buses and the coaches supervised the players during the bus ride. Finally, the camp was governed by a district administrative directive outlining supervision ratios, disciplinary procedures and control techniques. Equity in Athletics, Inc. v. Department of Educ., (W.D.Va.) February 1, 2010: Athletics - University could pursue gender proportionality without showing it had not met Department of Education's other criteria for Title IX's effective accommodation requirement. Under Title IX, a university could choose to pursue gender proportionality in its athletic programs by eliminating a men's program without first showing that it had not already met the Department of Education's two alternate criteria for satisfying the statute's effective accommodation requirement. The alternate criteria under Title IX were a program expansion responsive to the interests and the abilities of the underrepresented sex, or a showing of a present accommodation of such interests and abilities. The proportionality prong was a permissible means of complying with Title IX's ban on gender discrimination. Webb v. Warner Middle School, (C.A.3 (Del.)) January 31, 2010: Limitations - Equitable tolling did not apply to toll two-year statute of limitations on former student's personal injury claim. Equitable tolling did not apply to toll the two-year statute of limitations on a former student's personal injury claim against a middle school, the school district, and Delaware's Secretary of Education, which arose from alleged physical assaults on the former student perpetrated by another student more than 30 years earlier. The former student admitted in his complaint that he learned of his injuries from the alleged assaults more than two years before he filed his lawsuit, and could not rely upon the defendants' alleged fraudulent concealment of the assaults from the local police and his legal guardian. Forest Grove School Dist. v. T.A., (D.Or.) January 31, 2010: Disabled Students - Equities under IDEA did not support requiring school district to reimburse parents for cost of tuition at private school. The equities under the Individual with Disabilities Education Act (IDEA) did not support requiring a school district to reimburse a student's parents for the cost of tuition at a private school. The decisive factor was that the parents appeared to have enrolled the student in the school not because of any disability recognized by the IDEA but because of his drug abuse and behavioral problems, which were unrelated to his difficulties focusing in school. The parents also chose an extraordinarily expensive option, in that the private school charged its students $5,200 a month. C.Z. ex rel. Ziemba v. Plainfield Community Unit School Dist. No. 202, (N.D.Ill.) January 31, 2010: Attorney Fees - Child plausibly alleged claim against school district for attorney fees under IDEA. A minor child, by and through his parents, stated a claim against a school district for attorney fees under the Individual with Disabilities Education Act (IDEA). The child alleged that, although the district had agreed to provide some of the relief requested by the parents under IDEA, the child had not obtained all of the relief sought from school district, including compensatory education, until the parties' cross-motions were being addressed by a hearing officer. This plausibly alleged that a judicial imprimatur was involved in the due process proceeding. V.G. v. Auburn Enlarged Cent. School Dist., (C.A.2 (N.Y.)) January 31, 2010: Attorney Fees - Parent who obtained consent decree from hearing officer was prevailing party under Individuals with Disabilities Education Act. A parent, who obtained a consent decree from a hearing officer, was entitled to "prevailing party" status under the Individuals with Disabilities Education Act even though terms of order arose out of an agreement between the parties where hearing officer intended to place his imprimatur on the consent decree. Therefore, the parent was entitled to recover attorney fees. Konits v. Valley Stream Cent. High School Dist., (C.A.2 (N.Y.)) January 31, 2010: Attorney Fees - Remand was warranted of attorney fee award under Civil Rights Attorney's Fees Act to teacher who prevailed on retaliation claim. Remand was warranted of a district court's attorney fee award under the Civil Rights Attorney's Fees Act to a teacher who prevailed on her First Amendment retaliation claim, which she had brought against a school district and others. The district court did not sufficiently explain its fee award reductions for limited success, and it did not adequately explain the rates it applied. St. Andrews Presbyterian College v. Southern Ass'n of Colleges and Schools, Inc., (N.D.Ga.) January 31, 2010: Accreditation - Procedures used in removing college's accreditation met requirements of common law due process. The procedures which accreditation body used in removing a private college's accreditation met the requirements of common law due process to the extent such due process requirements existed in the accreditation process. The financial stability standard was sufficiently clear to provide notice to the member institutions, the tiered review system process was fundamentally fair even though the college was not permitted to present evidence at every level of review and was not able to provide new evidence to the appeals committee, the procedures provided the opportunity for the college to identify and explain any variances between the draft and final audits, and the information available to the ultimate decision-makers did not contain materially inaccurate or unreliable data. Harvey v. Gaulin, (N.Y.A.D. 4 Dept.) January 29, 2010: Torts - Trial court acted within its discretion in granting application for leave to serve late notice of claim on school district. The trial court acted within its discretion in granting the plaintiffs' application for leave to serve a late notice of claim on a county and school district in a personal injury action arising from an automobile accident with a county employee who was assigned to the district. Although the plaintiffs failed to offer a reasonable excuse for their failure to serve the notice of claim within the statutory 90-day period, the county and district had actual notice of the claim and there was no compelling showing of prejudice to the county or district. Lipsky v. New York Institute of Technology, (N.Y.A.D. 2 Dept.) January 29, 2010: Seniority and Tenure - Professor waived argument that board of trustee's improperly amended tenure criteria when extending his probationary period. A university professor waived arguments that the university's board of trustees improperly amended the criteria for tenure and improperly failed to publish those criteria when they modified the collective bargaining agreement to extend his probationary period after denying his tenure application. The professor agreed to the modification, and was aware of the criteria that would be considered when his tenure application was reconsidered at the end of the additional year of probation. Covington County School Dist. v. Magee, (Miss.) January 29, 2010: Extracurricular Activities - School district was protected from wrongful death suit stemming from student's death during football practice. Decisions regarding the timing and oversight of football practice were discretionary. Therefore, under the Mississippi Tort Claims Act, a school district was protected from a wrongful death suit brought by the family of a student who died from heat stroke during football practice. The district's discretionary decision to allow coaches the ability to set and conduct practices was rooted in policy in that coaches know their players and must be able to control their teams. This decision may not yet be released for publication. J.L. v. Mercer Island School Dist., (C.A.9 (Wash.)) January 29, 2010: Disabled Students - Rowley continues to set free appropriate public education (FAPE) standard, notwithstanding 1997 IDEA amendment. Reversing a Washington federal district court, a Ninth Circuit panel has ruled that the Supreme Court's 1982 decision in Board of Education of the Hendrick Hudson Central School District v. Rowley continues to set the free appropriate public education (FAPE) standard under the Individuals with Disabilities Education Act (IDEA). In amending that statute in 1997, Congress did not intend to supersede Rowley or otherwise change the FAPE standard. Agreeing with the First Circuit, the court held that there was no plausible read the definition of "transition services," a coordinated set of activities designed within a results-oriented process to facilitate a child's movement from school to post-school activities, to enlarge a school district's obligation, as part of a free appropriate public education (FAPE), to provide services reasonably calculated to enable the child to receive educational benefits. Fitzpatrick v. City of Fort Wayne, (N.D.Ind.) January 29, 2010: Civil Rights - Probable cause existed to arrest student. A juvenile summoned to a school office and placed in a conference room for brief police questioning after another student was attacked in the school bathroom had the right to remain silent under the Fifth Amendment whether he was in custody, or merely undergoing a Terry-type investigation. The student's refusal to answer the police officer's questions was only one factor the officer used to determine whether probable cause existed to arrest the juvenile. Other factors included the juvenile's image on a video tape depicting him fleeing the scene of the beating. The officer's knowledge that the juvenile returned to class without reporting the incident was another factor in the probable cause analysis. Williams v. Hissong, (N.D.Ind.) January 29, 2010: Civil Rights - University supervisor and department chair afforded student teacher requisite process in terminating assignment. Even if a student teacher possessed a due process property interest in completing his student teaching placement at a high school, the state university supervisor and the department chair afforded him the requisite process that was due in terminating his assignment. The decision was an academic decision to terminate the student teacher's assignment. The student was given an opportunity to comment on sub-par teaching evaluations, and there was no evidence that evaluations were product of any illegal animus. Nordberg v. Massachusetts Dept. of Educ., (Mass.App.Ct.) January 29, 2010: Administrators - Department of Education was not entitled to discretionary immunity from lawsuit alleging violation of statutory requirements for hiring school business administrators. The Department of Education and its commissioner were not entitled to discretionary immunity from a lawsuit by a certified school business administrator who alleged that the commissioner automatically granted all requests from school districts for waivers of statutory requirements that districts hire only certified administrators. The Appeals court held that the alleged actions of automatically granting waivers was not an exercise of discretion. A decision on a waiver request could only be a discretionary action if the commissioner had actually formed an opinion as to whether to grant or deny a waiver. People v. Ojeda, (Ill.App. 2 Dist.) January 29, 2010: Abuse and Harassment - Public high school was "public property" for purpose of statute enhancing battery to aggravated battery. A publicly funded high school constituted "public property," as required for a conviction under the statute enhancing an offense of battery to aggravated battery if the offense occurred "on or about public property." This was in spite of the fact that members of the general public did not have unlimited access to the school. The general public's restricted access to high schools and other government property was intended to ensure the maintenance of order and safety, not to restrict the public's access. This decision may not yet be released for publication. Miers v. Texas A & M University System Health Science Center, (Tex.App.-Waco) January 28, 2010: Torts - Resident oral surgeon at state university was university's "employee," warranting dismissal of surgeon from patient's negligence suit. The Court of Appeals of Texas has held that a resident oral surgeon at a state university system health science center was an "employee" of the center, such that the dismissal of the surgeon from the patient's negligence suit against the center and the surgeon was required, under the provision of the Tort Claims Act stating that, if a suit is filed against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit. The surgeon was in the paid service of the center. Moreover, the center had the right to control the details of the surgeon's practice, in that the surgeon's medical decisions in the treatment of patients was subject to regimens prescribed by the center, faculty supervision and review, and in some instances, could have been vetoed by his supervisors. Also, the center had the right to stop the procedure if it believed the surgeon was not doing something properly. This decision may not yet be released for publication. Husk v. Clark County School Dist., (Nev.) January 28, 2010: Torts - School district was not immune from liability under Coverdell Act from student's claim that it negligently hired teacher. A school district was not immune from liability under Coverdell Act from a student's claim that it negligently hired a teacher. The Act specifically excluded claims of negligent hiring from the liability protection. Howard v. E & B Paving, Inc., (Ind.App.) January 28, 2010: Torts - Daughter was not enrolled in postsecondary institution at time of death for purposes of Child Wrongful Death Act. A daughter was not "enrolled" in a post secondary institution at the time of her death, and thus she was not a "child" under the Child Wrongful Death Act. While the daughter previously had taken classes at the school, was eligible to enroll without having to reapply, and apparently intended to enroll, the daughter had not taken any classes in the previous two semesters, and had made no attempt to register for the upcoming semester. Thus, she was not "enrolled" at the time of her death, and was not a "child" under the Act. Conachen v. East Baton Rouge Parish School Bd., (La.App. 1 Cir.) January 28, 2010: Labor and Employment - School board did not abuse its discretion by excluding its former employees from receiving supplemental pay from surplus funds in tax revenue fund. The Court of Appeal of Louisiana has held that a parish school board did not abuse its discretion by excluding former parish school board employees from receiving supplemental pay from the surplus funds in a tax revenue fund, resulting from a voter-approved one percent sales tax, a portion of which was dedicated to increase the compensation of teachers and other school board employees, even though the former employees had been employed by the school board when the tax was passed and collected. This was the case because the proposition that voters approved indicated that the funds would be used for increasing the compensation of the school board's teachers and other school system employees, and the funds were used for that purpose. Also, the proposition was silent as to the timing, method, and manner of payment, and there was no legal authority mandating that the surplus funds accumulated during the former employees' employment had to be paid to them after they left their employment. This decision may not yet be released for publication. Weintraub v. Board of Educ. of City School Dist. of City of New York, (C.A.2 (N.Y.)) January 28, 2010: Labor and Employment - Teacher's filing of grievance was pursuant to his official duties, and thus, not protected by the First Amendment. The Court of Appeals for the Second Circuit has held that a public elementary school teacher's filing of a grievance with his union to complain about the school administration's failure to discipline a student who threw a book in his classroom was speech pursuant to the teacher's official duties, rather than speech as a citizen. Thus, it was not protected by the First Amendment, in light of recent United States Supreme Court decision of Garcetti. The Court of Appeals noted that the filing of the grievance was in furtherance of one of the teacher's core duties, which was maintaining classroom discipline. Also, the grievance had no relevant analogue to citizen speech, since it was an internal communication made pursuant to an existing dispute resolution policy established by the school district. Mpoy v. Fenty, (D.D.C.) January 28, 2010: Labor and Employment - Special education teacher was not entitled to injunction reinstating him in DCPS pending outcome of trial on the merits. A special education teacher seeking reinstatement in the District of Columbia Public Schools (DCPS) pending the outcome of his trial on the merits showed neither a substantial likelihood of success on the merits of his claims nor an irreparable injury if the requested injunctive relief was not granted. As for irreparable harm, he argued that he could not recover the time he would have lost as a graduate student in special education program at his university because he had exhausted all the time the university afforded him to be absent without being dismissed as a student. However, it was not clear that the university already had expelled him, that his expulsion was imminent, or that he had to apply for readmission to the graduate program. Rather, the record suggested he had requested or already taken a leave of absence from the university for reasons not articulated clearly in the motion that might not be attributable to the named defendants' actions. K.J. ex rel. B.J. v. Fairfax County School Board, (C.A.4 (Va.)) January 28, 2010: Disabled Students - Procedural violations did not result in denial of free and appropriate education. A school's procedural violations in failing to propose in writing the placement of a student diagnosed with emotional disabilities at a specific private day school and to include a representative of that school in the Individualized Education Program (IEP) meeting did not result in a denial of a "free and appropriate education," in violation of the Individuals with Disabilities Education Act (IDEA). Also, the proposed placement of the student in the local private day school, rather than a private boarding school, satisfied IDEA's substantive requirements. Weingarten v. Board of Educ. of City School Dist. of City of New York, (S.D.N.Y.) January 28, 2010: Civil Rights - Ban on teacher-worn political buttons in school did not violate free speech. A school chancellor's regulation which banned teacher-worn political buttons in high schools was reasonably related to the school district's legitimate pedagogical concerns. The prohibition did not violate the teachers' free speech rights. The school district's concern that political paraphernalia could improperly influence children, and the district's desire to maintain neutrality on controversial issues were legitimate pedagogical concerns. Webb v. Perkiomen School, (C.A.3 (Pa.)) January 27, 2010: Limitations - Limitations period on personal injury action could not be equitably tolled on basis that school concealed assault. The statute of limitations on a student's personal injury action could not be equitably tolled under Pennsylvania law on the basis that a school had fraudulently concealed the assault on the student by not notifying the local police and his legal guardian. The school had to have intentionally misinformed or concealed information from the plaintiff for equitable tolling to apply. Ghawanmeh v. Islamic Saudi Academy, (D.D.C.) January 27, 2010: Labor and Employment - Female Jordanian teacher stated Title VII claims of disparate treatment based on gender and national origin. A female teacher at an Islamic academy operated by the Kingdom of Saudi Arabia (KSA), a naturalized U.S. citizen originally from Jordan, did not have to name persons who were similarly situated but treated differently in order for her Title VII claim of disparate treatment based on gender and/or national origin to survive a motion to dismiss. Her allegations that, inter alia, she was unfairly denied leave and ultimately dismissed because there was a "systemic prejudicial and biased culture favoring males and Saudi Arabian nationals" and that "had (she) been male and/or a Saudi Arabian national, she would not have been fired" were sufficient. However, she failed to exhaust her administrative remedies with respect to her claim of gender discrimination, as her Equal Employment Opportunity Commission (EEOC) notice of a charge of discrimination indicated only that she was making a claim of retaliation based on national origin. Murphy v. Madison City Bd. of Educ., (Ala.Civ.App.) January 27, 2010: Labor and Employment - Time worked for county board of education could not be credited toward city board time to achieve nonprobationary status under Fair Dismissal Act. A former city board of education employee was not permitted to credit the time she spent as an employee of the county board of education toward her time spent working for the city board in order to attain "nonprobationary" status under Alabama's Fair Dismissal Act. The city board, therefore, was not required to have a good and just cause to dismiss the employee before she had worked for the city board for three years. The Court of Civil Appeals reasoned that the city board of education had not been formed out of, or divided from, the county board, but was created independently by resolution adopted by the city. This decision may not yet be released for publication. U.S. v. Green, (C.A.9 (Cal.)) January 27, 2010: Federal Funding - Evidence was sufficient to support defendant's conviction for wire fraud against E-Rate program. Evidence was sufficient to support a jury's conclusion that a defendant teacher engaged in a scheme to defraud, with a specific intent to deceive or defraud, the Federal Communications Commission's (FCC) Universal Service program that funded technology projects at schools and libraries, as required to support the defendant's wire fraud convictions. Even accepting that defendant's ultimate motives were laudable, the defendant's co-schemers, as well as representatives from school districts defendant worked with, testified that the school districts were promised that the entire project would be paid for out of federal funds and that the school districts would obtain substantial "bonus" items for free. However, the evidence also indicated that such promises were never revealed to the government's program administrator. The defendant testified about her own role in the scheme and admitted to editing equipment lists to prevent the administrator from learning that the projects included potentially ineligible equipment and acknowledging that she took steps to conceal from the administrator the fact that the schools would not be paying their co-pays. Gunasekera v. Irwin, (S.D.Ohio) January 27, 2010: Civil Rights - Name-clearing hearing offered to suspended university professor did not satisfy procedural due process. A name-clearing hearing offered by Ohio University administrators to a professor, whose graduate faculty status was suspended for three years after an investigation revealed that the professor neglected his ethical duties in failing to prevent plagiarism in his department, did not satisfy post- deprivation procedural due process requirements. The hearing was to be held in a conference room and attended by the administrators and a representative from the Ohio Attorney General's Office. The offered meeting was always presented as a name-clearing hearing, and the administrators never informed the professor that the meeting would serve as his post-deprivation hearing to dispute his suspension. Tingley-Kelley v. Trustees of University of Pennsylvania, (E.D.Pa.) January 27, 2010: Civil Rights - Fact issue precluded summary judgment as to university applicant's Title IX gender discrimination claim. A genuine issue of material fact existed as to whether the status of a female applicant for admission to the University of Pennsylvania School of Veterinary Medicine (Penn Vet) as a mother of two small children and the wife of an active Air Force serviceman was a motivating factor in the school's repeated rejection of her applications for admission, precluding summary judgment as to the applicant's Title IX gender discrimination claim against the university's trustees. The applicant proffered direct evidence of discrimination, including evidence that members of the admission committee wrote comments about her status as a mother and wife of a serviceman on their application review forms, and evidence that her childcare responsibilities were discussed at length during each of her admission interviews. Kelly v. Huntington Union Free School Dist., (E.D.N.Y.) January 27, 2010: Civil Rights - Elementary school teachers stated a First Amendment retaliation claim against a school district. Elementary school teachers stated a First Amendment retaliation claim against a school district and a board of education regarding actions purportedly motivated by their complaints about alleged misconduct by the chairperson of a gifted and talented program. The court rejected defense claims that the teachers' complaints were not protected because they were made pursuant to their official duties and did not address matters of public concern, and that they failed to allege a causal connection. Association of Christian Schools Intern. v. Stearns, (C.D.Cal.) January 27, 2010: Admission - State university's admissions guidelines and policies did not violate the First Amendment's guarantee of free speech. A state university's admissions guidelines and policies were rationally related to the goal of selecting the most qualified in-state students for admission, and therefore did not violate the First Amendment's guarantee of free speech. The guidelines and policies statements regarding the specific subjects with which in-state applicants were required demonstrate proficiency were substantively reasonable, the university employees charged with reviewing the high school courses were sufficiently qualified to implement the guidelines and policies, the course review process was not unreasonably probabilistic, and reviewing only in-state high school courses was reasonable. Doe 20 v. Board of Educ. of Community Unit School Dist. No. 5, (C.D.Ill.) January 27, 2010: Abuse and Harassment - Parents of elementary school students stated Fourth Amendment claim against school administrators for failure to take action on teacher's behavior. The allegations of parents of elementary school students, that school administrators were notified of a first grade teacher's behavior, which included detaining and blindfolding female students under forced commitment to silence, and inserting his fingers, objects and other items in the students' mouths without their consent, and that administrators failed to take action regarding the teacher's behavior, stated a Fourth Amendment claim against the school administrators. Doe-2 v. McLean County Unit Dist. No. 5 Bd. of Directors, (C.A.7 (Ill.)) January 26, 2010: Torts - School district lacked required control over sex abuse teacher committed in new district to sustain student's Title IX claim. A county school district and various of its officials were not liable in an action brought by a student in another school district under the implied private right of action of Title IX of the Education Amendments of 1972 related to the sexual abuse an elementary school teacher committed against her after leaving his position with the county school district and obtaining a position in the student's district. The court assumed that the county school district or its officials had knowledge of the risk that the teacher would sexually abuse students in the new district. However, the county school district and its officials lacked the requisite control over the teacher's sexual abuse in the new district. Chae v. SLM Corp., (C.A.9 (Cal.)) January 26, 2010: Scholarships and Loans - State law claims challenging practices used in servicing student loans were preempted due to conflict with Higher Education Act. State law claims brought by borrowers against a student loan servicer for breach of contract, unjust enrichment, breach of the implied covenant of good faith and fair dealing, and use of fraudulent and deceptive practices were preempted due to conflicts with the Federal Family Education Loan Program (FFELP) of the Higher Education Act (HEA). The borrowers alleged that the servicer's practices of using the simple daily interest method for calculating interest, charging late fees when it was using such a calculation method, and setting the first repayment date as close as possible to 60 days after disbursement violated California contract law and consumer protection law. However, FFELP regulations permitted lenders to use the simple daily interest method, charge late fees, and set first the repayment date up to 60 days out. Any state prohibition on such practices would have created an obstacle to the uniform administration of FFELP and the effective promotion of the funding of student loans. Jiann Min Chang v. Alabama Agricultural And Mechanical University, (C.A.11 (Ala.)) January 26, 2010: Labor and Employment - University established Asian instructor's insubordination as legitimate, non-discriminatory reason for terminating instructor. A university established an Asian instructor's insubordination as a legitimate, non-discriminatory reason for terminating the instructor. The university's academic affairs vice-president contacted the instructor after a student complained that the instructor refused to permit the student to take an exam after providing a medical excuse. The instructor admitted raising his voice to the vice-president and refused to comply with the vice-president's demand to permit the student to take the exam. Moreover, the vice-president repeatedly testified that the decision not to renew the instructor's contract was based on the disrespect that the instructor demonstrated during the resolution of the complaint. J.N. v. District of Columbia, (D.D.C.) January 26, 2010: Disabled Students - A procedural failing rendered infirm a finding that a student's school placement was appropriate under the IDEA. District of Columbia Public Schools (DCPS) did not act with reasonable diligence in responding to or accommodating the requests of a student's mother to reschedule a meeting to develop the student's individualized education program (IEP) so that she could participate. This procedural failing rendered infirm a hearing officer's finding that the student's school placement was appropriate for purposes of the Individuals with Disabilities Education Act (IDEA). The mother made timely, diligent and reasonable efforts to reschedule a meeting, and there was no evidence that DCPS did anything to respond to or accommodate her requests. Lessard v. Wilton-Lyndeborough Coop. School Dist., (C.A.1 (N.H.)) January 26, 2010: Disabled Students - Failure of IEP to provide instructor already experienced with literacy program did not render it inadequate. The failure of a student's individualized educational program (IEP) to provide an instructor already experienced with a literacy program for student called the Lindamood Phoneme Sequencing Program (LiPS) did not render it inadequate under the Individuals with Disabilities Education Act (IDEA). The student's teachers had indicated that she was progressing at a level commensurate with her cognitive profile. The court recognized that the student might have benefited even more if the recommendations for the program had been followed in full, but what was "appropriate" depended on the expert judgment of district officials, available options, and indications of progress. K.S. ex rel. P.S. v. Fremont Unified School Dist., (N.D.Cal.) January 26, 2010: Disabled Students - School district had provided autistic student with free appropriate public education (FAPE), despite student's slow progress. A preponderance of the evidence supported an administrative law judge's (ALJ) conclusion that, during the years at issue, an autistic student made educational progress that was, for her, both meaningful and significant. Thus, the school district had provided the student with a free appropriate public education (FAPE) in accordance with the Individuals with Disabilities in Education Act (IDEA). While the student's progress was admittedly slow, the fact that the student achieved, but did not surpass, the majority of her goals tended to show that the individualized education programs (IEP) were designed appropriately. Williams v. D & J School Bus, Inc., (N.Y.A.D. 2 Dept.) January 25, 2010: Transportation - Affidavit of city employee was insufficient to establish that contract between city and school bus operator did not exist. The summary judgment affidavit of a city employee who conducted a search of certain records was insufficient in a negligence action against the City of New York and Board of Education of the City of New York to establish that a contract between the city and school bus operator did not exist. The action arose out of an accident involving a school bus. The employee did not describe the relevant records regularly created and maintained by the city, nor did she describe the practices and procedures for the creation, maintenance, retrieval, or use of such records. Williams v. D & J School Bus, Inc., (N.Y.A.D. 2 Dept.) January 25, 2010: Transportation - Transit company established prima facie entitlement to judgment in personal injury action arising out of school bus accident. On motion for summary judgment in a personal injury action involving the City of New York and the Board of Education of the City of New York, which action arose of out school bus accident, a transit company demonstrated its prima facie entitlement to judgment as matter of law by submitting the affidavit of owner, who stated that the company did not employ the school bus driver on date that the driver was involved in the accident, nor did they own, operate, or maintain the bus involved in the accident. Place v. Beekmantown Cent. School Dist., (N.Y.A.D. 3 Dept.) January 25, 2010: Torts - An elementary school student would be granted leave to file a late notice of claim against a school district. An elementary school student would be granted leave to file a late notice of claim against a school district, its board of education and a department of social services regarding an alleged failure to timely act on the child's allegations of sexual abuse by his stepfather. The claims against the defendants were not patently meritless. Moreover, despite the passing of considerable time, key witnesses were ostensibly identifiable and available. Most were apparently still employed by the defendants, and some testified at the stepfather's criminal trial without apparent difficulty recalling germane events. Boutte v. Duncan, (C.A.7 (Ill.)) January 25, 2010: Scholarships and Loans - DOE's denial of student's request for loan discharge because of permanent total disability was not arbitrary and capricious. The Department of Education's (DOE's) denial of a college student's request to discharge her federal loans on the basis of disability was not arbitrary and capricious. The student, who had severe spinal stenosis and osteoarthritis, failed to establish that she was permanently and totally disabled. The agency was not required to accept the conclusory and unsupported assessment of the student's physician that her condition rendered her "permanently and totally disabled" and "there is no reasonable probability that the disabled condition will ever improve," nor did the few specific details the physician provided about her condition, that her ailments were "moderately controlled with medication and physical therapy," that her symptoms will worsen without surgery, that she walks with a cane and has severe lower back pain, and that she is "unable to walk, sit, or stand for long periods of time" or lift anything heavier than 5 pounds, come close to establishing that she was unable to work in, e.g., a sedentary position. Although the student claimed she received federal disability retirement and social security disability benefits, she did not provide evidence of same, and in any event the DOE was not bound by the standards of other agencies. State ex rel. Edgeworth v. Univ. of Toledo, (Ohio App. 6 Dist.) January 25, 2010: Labor and Employment - University was not required to implement retirement incentive plan when employee of student affairs employing unit was laid off. A laid-off employee was an employee of the student affairs employing unit within a state university, even though the university issued her paycheck. Thus, because only four employees of the employee's employing unit were laid off, the university was not required to implement a retirement incentive plan when the employee's position was eliminated. Although a statute provided that, in the case of an employee whose employing unit was in question, the employing unit was the unit through whose payroll the employee was paid, there was no dispute over which entity was the employing unit. Menard v. Louisiana High School Athletic Ass'n, (La.App. 1 Cir.) January 25, 2010: Athletics - Student athlete's ineligibility to participate did not give rise to actionable due process or equal protection claims. A student athlete had no procedural or substantive due process right to participate in interscholastic sports, as regulated by the state's high school athletic association. And thus, the athlete's ineligibility to participate in sports under the association's transfer rule did not give rise to an actionable due process claim against the association. The possibility of obtaining a college athletic scholarship based upon the athlete's participation in high school athletics simply did not constitute a property interest or right protected by due process. This decision may not yet be released for publication. DT v. Somers Central School Dist., (C.A.2 (N.Y.)) January 25, 2010: Abuse and Harassment - School was not deliberately indifferent to alleged student-on-student racial harassment of biracial student. A school's investigation of an incident of alleged student-on-student racial harassment in the cafeteria, involving one student tapping a biracial student on his head while sitting with a group of students who ate lunch together, was not clearly unreasonable in light of known circumstances. Thus, the school was not deliberately indifferent to race discrimination prohibited under Title VI of the Civil Rights Act. The cafeteria supervisor did not believe that the incident involved any malicious intent and observed the biracial student continuing to eat lunch with the same group of students for the rest of the school year. The student's mother was advised of her right to file a complaint but declined. Steinberg v. Board of Educ. of City School Dist. of City of New York, (N.Y.A.D. 1 Dept.) January 24, 2010: Labor and Employment - Former probationary school teacher did not warrant reinstatement to position with back pay. The city board of education's termination of an employee's position as a probationary school teacher was rationally based, not for a constitutionally impermissible purpose, not violative of a statute, and not performed in bad faith. Review of the chancellor's committee report by the director of the Board of Education's Office of Labor Relations and Collective Bargaining, to render legal advice to the chancellor's designee, did not impermissibly alter the review process mandated by the board's bylaw. The chancellor's designee was not barred from obtaining legal advice, and the designee made the termination determination, not the director. El-Hewie v. Bergen County, (C.A.3 (N.J.)) January 24, 2010: Labor and Employment - New Jersey provisional teacher did not have constitutionally protected property interest in his nontenured teaching position. A provisional teacher in New Jersey did not have a property interest in his continued employment which was protected by due process. The teacher, who alleged that he was hired pursuant to a "teacher preparation program," entered into a "10-month, Non-Tenured Teachers Contract" terminable by either party on 60 days written notice. The "mentoring and training" provided to provisional teachers did not create a protected property interest. Ferraro v. North Babylon Union Free School Dist., (N.Y.A.D. 2 Dept.) January 24, 2010: Disabled Students - School had no duty to supervise child while he attended special education program contracted out to educational agency. A school's custodial duty to supervise a child who was injured by catching one of his fingers in the hinge of a heavy self-closing door at the school ceased when the child passed outside of the school's orbit of authority while attending a special education program that was contracted out to a regional educational service agency. Thus, the child's negligent supervision claim against the school was foreclosed. Huson ex rel. Huson v. Simi Valley Unified School Dist., (C.A.9 (Cal.)) January 24, 2010: Disabled Students - Plaintiffs failed to exhaust their administrative remedies, and exhaustion would not have been futile. A disabled student and his parents were required to exhaust their administrative remedies before seeking relief against a California school district under the Rehabilitation Act, Americans with Disabilities Act (ADA), and 1983. They failed to show that exhaustion of administrative remedies would have been futile. Initially, they sought Individuals with Disabilities Education Act (IDEA) services and were denied them. Disagreement over the student's education fell within the bounds of identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child. KLA v. Windham Southeast Supervisory Union, (C.A.2 (Vt.)) January 24, 2010: Disabled Students - Nonlawyer parents could not represent incompetent adult in IDEA case. Nonlawyer parents could not represent an incompetent adult in a suit under the Individuals with Disabilities Education Act (IDEA). Parents had independent, enforceable rights under the IDEA. However, because the complaint in the IDEA action named an incompetent adult as the sole petitioner and asserted no claims on behalf of her parents, the court would defer consideration of the appeal for 45 days pending possible appearance of counsel to represent the parents as the next friends of the incompetent adult. Sherman v. Ronco, (Conn.) January 22, 2010: Torts - Proposed amendment to original timely filed complaint, to allege sexual assault, did not relate back to original complaint. A former student's proposed amendment to his original timely filed complaint, to allege intentional torts against his former junior high school principal for assault and battery and intentional infliction of emotional distress, and which depended on different facts from those he initially alleged, did not relate back to the original complaint against the principal for alleged negligent supervision of a teacher, who allegedly abused the student sexually. Because the proposed amendment was filed more than thirty years from the date the student attained age of eighteen, the claims in the amendment were untimely. Compass Group USA, Inc. v. Eaton Rapids Public Schools, (C.A.6 (Mich.)) January 22, 2010: Property and Contracts - Food service operator was entitled to liquidated damages for school district's breach of non-compete agreement in contract. A school district was prohibited under the non-compete clause in a contract with its food service operator to solicit to hire, hire or contract with the food service operator's employee during the term of contract or for one year thereafter. Thus, the food service operator was entitled to liquidated damages in amount of $61,243.53 for school district's breach. The non-compete clause amounted to a mutual promise, where each party promised not to hire the other's employees. The food service operator provided the requisite consideration, in the form of a promise not to hire school district personnel, to support the final agreement. Mastrolillo v. Connecticut, (C.A.2 (Conn.)) January 22, 2010: Labor and Employment - Professor failed to establish a prima facie case of gender discrimination against college. A former assistant professor of a community college failed to establish that she performed her job satisfactorily, as required to establish a prima facie case of gender discrimination against the college under Title VII based on the non-renewal of her teaching contract. This was true in light of negative performance evaluations and the professor's admitted lack of interest in teaching certain advanced level courses. Page v. Liberty Cent. School Dist., (S.D.N.Y.) January 22, 2010: Labor and Employment - Hearing officer's findings in disciplinary proceeding collaterally estopped school librarian from asserting ADA claims. A hearing officer's findings in a state administrative proceeding were entitled to preclusive effect in a school librarian's action alleging that the school district failed to accommodate her disability and wrongfully terminated her on account of her disability, in violation of the ADA. The hearing officer found that physical presence was an essential job function and that there were no reasonable accommodations that would permit the librarian to return to the school. Chappell v. Butterfield-Odin School Dist. No. 836, (D.Minn.) January 22, 2010: Labor and Employment - School district was not entitled to summary judgment on teacher's claim that she was regarded as disabled. A Minnesota school district was not entitled to summary judgment on a former teacher's disability discrimination claim under the Americans with Disabilities Act (ADA). The teacher, who had epilepsy and congenital fusion of two vertebrae in her neck, was forced to resign, and constructive discharge was an adverse employment action. A reasonable jury could find that the district superintendent regarded the plaintiff as unable to work in the field of teaching. The school district's proffered reason for asking for her resignation, "her repeatedly contentious and insubordinate behavior and her disregard for school protocol," was legitimate and nondiscriminatory. A genuine issue of material fact existed as to whether that reason was a pretext for discrimination based on perceived disability. Snyder v. New York State Educ. Dept., (C.A.2 (N.Y.)) January 22, 2010: Dismissal - District court abused its discretion in dismissing IDEA action for failure to prosecute. A district court abused its discretion in dismissing for failure to prosecute an action alleging violations of the Individuals with Disabilities Education Act (IDEA). The plaintiffs were on notice that further delays could result in a dismissal. However, the plaintiffs were proceeding pro se, and the court dismissed the claims against the school district four days after the plaintiffs failed to meet a deadline. Wildi v. Hondros College, (Ohio App. 10 Dist.) January 22, 2010: Admission - Former college student failed to establish breach of contract claim against college. The Court of Appeals of Ohio has held that a former college student suffered no damages as a result of the college refusing to allow her to attend classes, as necessary for her to establish a breach of contract claim against the college. This was the case because the college reimbursed the former student for her enrollment and tuition expenses. Busch v. Marple Newtown School Dist., (U.S.) January 22, 2010: Civil Rights - Constitutionality of public school's restriction of mother's effort to read Bible passages in kindergarten class -- Certiorari Denied A public elementary school's restriction of a mother's effort to read Bible passages aloud to the students in her son's kindergarten classroom as part of a curricular "show and tell" type activity did not violate the mother's or the son's free speech rights, the Third Circuit previously held in a case in which the United States Supreme Court has now denied certiorari. Although the school allowed the students to discuss religious holidays and read from certain holiday-oriented religious materials, the school officials acted reasonably in disallowing the reading of religious text because they believed it would proselytize a specific religious point of view, and that it would appear to be an endorsement by the school of a particular religion, which could implicate the establishment clause. A dissenting judge observed that the Supreme Court has consistently considered two important questions in free speech clause cases involving private speech: (1) whether the state's regulation of speech is based on subject matter or viewpoint, and (2) whether the speech being regulated takes place in a public forum, a limited public forum, or a nonpublic forum. The majority did not discuss the first question, the dissent stated, and, as for the second question, the majority summarily concluded that the classroom was a nonpublic forum, after which it relied extensively on Walz ex rel. Walz v. Egg Harbor Tp. Bd. of Educ., 342 F.3d 271 (C.A.3-N.J. 2003), in concluding that the school district appropriately barred the student's mother from speaking. The majority's conclusion that Walz controlled the appeal was incorrect, the dissent asserted. (Case below: Busch v. Marple Newtown School Dist., 567 F.3d 89 (C.A.3-Pa. 2009).) Smith v. Sherwood, (N.Y.A.D. 4 Dept.) January 21, 2010: Transportation - Fact issues precluded summary judgment in action arising from student being struck by vehicle after disembarking from bus. Summary judgment was not warranted in the common-law negligence action of a student's father, arising from an accident in which the student was struck by a vehicle while crossing a street. Although bus was not subject to the statutory safety equipment requirements, fact issues existed as to whether the bus driver and the regional transportation authority assumed a duty to protect the student against the special danger created when the driver dropped the student off on the wrong side of the street. Fact issues also existed as to whether the driver's failure to provide supervision or assistance to the student was the proximate cause of the accident. Miller v. Van Wert Cty. Bd. of Mental Retardation & Dev. Disabilities, (Ohio App. 3 Dist.) January 21, 2010: Torts - Alleged negligent supervision by school bus driver was not operation of motor vehicle under exception to immunity. Alleged negligent supervision by a school bus driver, in failing to ensure that a student at a center for individuals with disabilities got off the bus, was not "negligent operation of any motor vehicle" so as to fall within an exception to immunity under Ohio's political subdivision tort liability statute. The student alleged that as a result of being left on the bus, she was exposed to "extreme heat and unbearable conditions" for approximately five hours and sustained severe emotional distress and bodily harm. Tucker v. Bensalem Tp. School Dist., (Pa.Cmwlth.) January 21, 2010: Torts - There was sufficient evidence that school district properly treated and removed snow and ice from its parking lot. Despite conflicting evidence in a negligence action brought against a school district by a bus driver employee of a Head Start program, there was sufficient evidence that the school district properly treated and removed snow and ice from its parking lot, after various storms had hit, leaving generally icy conditions in the general area, which were continuing at time of the driver's slip and fall on ice in the parking lot. Thus, the evidence supported the jury's finding that the school district exercised ordinary care under the circumstances. Birmingham City Bd. of Educ. v. Hawkins, (Ala.Civ.App.) January 21, 2010: Standards and Competency - Lapse of teaching certificate did not automatically divest teacher of her status as a teacher with continuing service. The Alabama Court of Civil appeals had held that the lapse of a teaching certificate did not divest a teacher of her status as a teacher with continuing service. As a result, before the board of education could cancel the teacher's employment, it was required to provide the teacher with notice, and an opportunity for a hearing. This decision may not yet be released for publication. Valdez-Zontek v. Eastmont School Dist., (Wash.App. Div. 3) January 21, 2010: School Districts - School district was liable in defamation action for officials' statements that district employee was having an affair. A school district was liable to a district employee in a defamation action arising out of statements that officials made alleging that the employee was having a sexual affair with the district superintendent. The statements were provably false, and not simply allegations that the employee and superintendent had an inappropriate relationship. The employee was a private figure for purposes of the statements, even though some of the statements had been made during investigation of the employee's time sheets, since no connection between the alleged affair and the time sheets was made. Any common interest privilege that the officials might have had to make the statements was abused by the officials. Finally, the school district was not entitled to immunity from liability under the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, since only one of the defamatory statements, one to the state auditor, could have been characterized as a statement to a government organization regarding a matter of concern to the agency. Moss v. Spartanburg County School Dist. No. 7, (D.S.C.) January 21, 2010: Religion - Allegations were sufficient to plead public school program violated Establishment Clause. Allegations that a public school's released time program permitted students to leave the school in order to attend private religious instruction and that the students received grades for such instruction that affected the students' grade point average, which would be used as a qualification for other educational opportunities, were sufficient to plead the program violated the Establishment Clause. In re Subpoena Issued to Smith, (Ohio Com.Pl.) January 21, 2010: Records - Grand jury subpoena for production of documents that might have been student records was lawfully issued to dean of students. A grand jury subpoena for the production of documents that might have been student records was lawfully issued to the dean of students of a university. The student was given notice of the subpoena, but filed no motion to quash or modify or any other motion to bar production of the records. Some of the records could have been considered law enforcement unit records. Neshaminy Federation of Teachers Local Union 1417 v. Pennsylvania Labor Relations Bd., (Pa.Cmwlth.) January 21, 2010: Labor and Employment - Labor Relations Board did not abuse its discretion by declining to issue complaint on teachers' union's charge of unfair labor practices against school district. The Pennsylvania Labor Relations Board did not abuse its discretion by declining to issue a complaint on a teachers' union's charge of unfair labor practices against a school district when, for purposes of maintaining the status quo following expiration of the collective bargaining agreement, the district did not make periodic wage adjustments based upon additional academic credits earned by its teachers in the preceding year. Wages were a mandatory subject of bargaining, as were any adjustments to those wages. Furthermore, defining status quo to include wage increases from an expired collective bargaining agreement, regardless of the reason for the increase, would allow teachers to gain an unfair advantage over the district by obtaining the very wage increases under negotiation. William Floyd School Dist. v. Maxner, (N.Y.A.D. 2 Dept.) January 21, 2010: Insurance - School district was additional insured under subcontractor's policy. A school district and the general contractor on a middle school construction project were additional insureds under a subcontractor's liability policy for claims arising out of an accident during work performed under the subcontract. They thus were entitled to a defense and indemnification from the subcontractor's insurer in the underlying personal injury action. The subcontract required the subcontractor to name the school district and the general contractor as additional insureds. Its policy covered additional insureds for liability arising out of the subcontractor's "ongoing operations" performed for an additional insured at the designated location. State v. Hardgrove, (Wash.App. Div. 3) January 20, 2010: Security - As fully commissioned general authority Washington peace officer working for general authority agency, state university police officer was authorized to make traffic stop in the City of Pullman. Because a state university police department itself allocated more than one- half of its "resources" to general law enforcement functions, it was a "general authority Washington law enforcement agency," and as such, it was empowered to enter into mutual aid agreements with the City of Pullman and Whitman County. As a fully commissioned general authority Washington peace officer working for a general authority agency, a state university police officer was authorized by the agreement to make a traffic stop in the City of Pullman. Pierce v. Drobny, (Neb.) January 20, 2010: School Boards - Election contest was exclusive remedy when residents sought invalidation of results of election that approved school bond issue. Although school district residents sought an order under the Open Meetings Act voiding a school board resolution authorizing a special election for the issuance of bonds for the construction of a new school, the relief they ultimately sought was the invalidation of the results of the election that approved the bond issue. Thus, once the election had been held, an election contest was the exclusive remedy. Ex parte Wilson, (Ala.Civ.App.) January 20, 2010: Labor and Employment - In Teacher Tenure Act case remanded for rehearing, the new hearing was to be conducted by original hearing officer. The Alabama Court of Civil Appeals held that when a hearing officer's decision on a Teacher Tenure Act challenge to a dismissal is reversed, and the case is remanded for "another hearing," the new hearing on remand is required to be held by the original hearing officer. A teacher seeking a writ of mandamus from the Court compelling the original hearing officer to conduct such a hearing in her case was not entitled to relief, however, where there was no evidence that the hearing officer had refused to conduct the hearing. This decision may not yet be released for publication. Blackman v. District of Columbia, (D.D.C.) January 20, 2010: Attorney Fees - Reduction of billed hourly rates was warranted, in calculating award of attorney fees in action against school district. Hourly rates of $560 for an attorney who specialized in energy regulatory work, and $495 per hour for an attorney who primarily represented electric utilities in administrative proceedings were not reasonable, for purposes of calculating an award of attorney fees as provided for in a consent decree in an action brought under the Individuals with Disabilities Education Act by parents of special education students against a city and its school district. Even if the attorneys would have charged their paying clients those rates, reduction of the attorneys' rates to $465 and $410 respectively would fairly compensate them while at the same time recognizing their law firm's commitment to pro bono work. Ohton v. California State University of San Diego, (Cal.App. 4 Dist.) January 20, 2010: Athletics - California State University did not address whistleblower retaliation complaint adequately to preclude civil action. The California State University (CSU) did not "satisfactorily address" a San Diego State University coach's retaliation complaint under the California Whistleblower Protection Act (CWPA), and thus the coach was not barred from bringing a civil action for damages. Although the CSU found that the coach's work hours were changed in a way that prevented him from working with the football team in retaliation for allegations he made against the head football coach, the CSU failed to identify the retaliators, failed to specify whether they were disciplined in any manner and whether the matter was referred to criminal prosecution, and if not, failed to explain why not. The CSU also applied the wrong standard in its determination that the allegations were not made in good faith. Dorfman v. Pine Hill Board Of Educ, (C.A.3 (N.J.)) January 19, 2010: Labor and Employment - A proffered legitimate non-discriminatory reason for not renewing a teacher's contract was a pretext for age discrimination. A board of education's proffered legitimate non-discriminatory reason for not renewing a music teacher's contract was not a pretext for age discrimination violating the New Jersey Law Against Discrimination (LAD). The proffered reason was negative performance evaluations, which noted that the teacher needed to improve her classroom management skills. U.S. ex rel. Feldman v. Van Gorp, (S.D.N.Y.) January 19, 2010: Federal Funding - District Court had subject matter jurisdiction over qui tam action against professor and university. The relator had direct and independent knowledge of the alleged fraud, as required for him to bring, as an original source, a qui tam action, on behalf of the United States pursuant to the False Claims Act, alleging that a professor and university knowingly submitted false claims to obtain federal research funds administered by the National Institutes of Health. As a fellow in the research program, the relator had more than mere background information of the alleged fraud. The Souderton Area School Dist. v. J.H. ex rel. J.H., (C.A.3 (Pa.)) January 19, 2010: Disabled Students - School district's proposed use of rubric-based writing process was sufficient to provide free appropriate public education. A school district's proposed use of a rubric-based writing process to address a student's writing needs was sufficient to provide him with a free appropriate public education (FAPE) as required by the Individuals with Disabilities in Education Act (IDEA), and thus the student's parents were not entitled to tuition reimbursement for his placement in a private school. The rubric-based writing process was identified by the district's language arts coordinator as the best practice for addressing the student's needs. Weissburg v. Lancaster School Dist., (C.A.9 (Cal.)) January 19, 2010: Disabled Students - Attorney fees of student's grandmother were recoverable under IDEA. The parents of a disabled seven-year-old student were eligible to receive attorneys fees as the prevailing party under the Individuals with Disabilities Education Act (IDEA), even though a relative provided the representation. Their underlying action challenged the school district's classification of their child's disabilities. Representation was provided by the child's grandmother. The court failed to extend its bright-line prohibition of awarding attorneys fees to parents who represent their children in IDEA matters. B.T. ex rel. Mary T. v. Department of Educ., Hawaii, (D.Hawai'i) January 19, 2010: Disabled Students - Student failed to exhaust administrative remedies with respect to claim that state failed to update individualized education plan. A disabled student failed to exhaust his administrative remedies with respect to his claim that the Hawaii Department of Education (DOE) failed to update the student's individualized education plan (IEP) in violation of the Individuals with Disabilities Education Act (IDEA). The district court thus lacked subject matter jurisdiction over the claim in the student's action seeking compensatory education as a result of the DOE's alleged failure. The student's request for an administrative due process hearing did not allege that the DOE failed to update the IEP and the student never specifically presented the issue for resolution during the hearing. Suffolk County Fire Academy Vocational Educ. & Extension Bd. v. New York State, (N.Y.A.D. 3 Dept.) January 18, 2010: Private and Vocational Schools - Department of Education was required to reimburse half of amount paid by county for vocational education teachers' salaries. A county vocational education and extension board's payment to part-time, per diem teachers to train volunteer firefighters constituted "salary," within meaning of the Education Law, authorizing the Department of Education to provide state aid to counties in the amount of one-half of the salary paid each vocational education teacher, not to exceed a $10,500 cap for each teacher. Thus, the Department of Education was required to simply reimburse half of the amount paid by the board, rather than using a complex formula calculating a daily maximum figure to prorate the salaries in awarding the state aid. Musachio v. Smithtown Cent. School Dist., (N.Y.A.D. 2 Dept.) January 17, 2010: Torts - A school district failed to establish a lack of constructive notice of a condition allegedly causing a student's fall. A school district's evidence in support of a defense motion for summary judgment in a personal injury suit brought by a middle school student, who allegedly slipped and fell during lunch period on an accumulation of water in the school cafeteria, was insufficient to meet its initial burden on the issue of lack of constructive notice. Deposition testimony of the district's custodian failed to establish when the area where the accident occurred was last cleaned or inspected prior to the occurrence of the accident. Sharp v. Worthington City School Dist. Bd. Of Educ., (C.A.6 (Ohio)) January 17, 2010: Jurisdiction - Teacher failed to allege a federal question in her complaint against school board. A former teacher's mere allegation that the school board breached, in "bad faith," a settlement agreement, in which the teacher waived her Title VII discrimination claim against the school board, did not, by itself, create a federal question based on the federal nature of the teacher's discrimination claim. Therefore, the district court could not hear the teacher's Title VII claim. In re Miguel H., (Cal.App. 2 Dist.) January 15, 2010: Security - Public high school was "public place" where possession of etching cream or aerosol paint container was prohibited. A public high school was a "public place" within the meaning of the statute prohibiting possession of etching cream or an aerosol container of paint in a public place, even though public access to public schools was limited by statute and such schools had been found to be non-public forums for First Amendment purposes. Thus, the juvenile court properly found that a minor violated the statute by possessing a paint container while attending school. The Court of Appeal explained that in determining what was a "public place," the court's main focus was how best to protect those whom the statute was intended to protect, and the accessibility to such areas by the general public was not an overriding factor. Gilbert v. Illinois State Bd. of Educ., (C.A.7 (Ill.)) January 15, 2010: Labor and Employment - Federal courts were barred, under Rooker-Feldman, from considering high school teacher's due process claim. The District Court and the Court of Appeals were barred, under the Rooker- Feldman doctrine, from considering a high school teacher's federal due process claim, which flowed directly from an Illinois Circuit Court's order implementing the Illinois Appellate Court's mandate that order ending his employment with school district was to be reinstated without further administrative proceedings. There was no way that the federal courts could accept the claim and issue an injunction to reconvene hearings without effectively reversing the state court decisions. The state circuit court had already interpreted state appellate court's ruling, and that court concluded that the appellate court meant to rule on the merits of the school district's decision to fire teacher. Moreover, the state circuit court had before it the teacher's argument that the proceedings should be reopened and it rejected that position. North v. Board of Trustees of IL State University, (C.D.Ill.) January 15, 2010: Labor and Employment - FLSA collective action would not be conditionally certified as to employees other than 2007 Conference Assistants. Plaintiffs seeking conditional certification of a Fair Labor Standards Act (FLSA) collective action involving conference employees of an Illinois state university had met their burden of showing that 2007 Conference Assistants (CAs) were similarly situated to one another. However, they had not met their burden to make a modest factual showing that 2007 CAs were similarly situated to 2007 Conference Coordinators, Team Leaders, and/or employees with similar job titles. While an agreement setting the terms of work for 2007 CAs served to bind their claims together, the requisite "factual nexus" did not exist between 2007 CAs, the other 2007 employees, and the non-2007 employees. Thus, conditional certification would not be granted as to the other employees, and notice would be given only to the smaller group. Kalbfleisch ex rel. Kalbfleisch v. Columbia Community Unit School No. 4, (Ill.App. 5 Dist.) January 15, 2010: Injunction - Preliminary injunction allowing autistic child to bring his service dog with him to school was warranted. A preliminary injunction allowing a five-year-old autistic child to bring his service dog with him to school under the service animal statute was warranted. The child established a likelihood of success on the merits, and established that he would have suffered valid irreparable harm if the injunction were not granted. Also, the trial court found it necessary to arguably alter the status quo in order to prevent further harm and the trial court found in favor of the child in balancing the hardships. This decision may not yet be released for publication. Heyne v. Metropolitan Nashville Public Schools, (M.D.Tenn.) January 14, 2010: Student Discipline - White Tennessee student stated procedural due process and equal protection claims based on racially disparate discipline. A white Tennessee high school student stated plausible procedural due process and equal protection claims based on his alleged receipt of racially disparate discipline. The student, who received a ten-day suspension for driving over an African-American student's foot, alleged that the school's principal instructed his staff to "be more lenient in enforcing the school's Code of Conduct against African-American students because there were too many African-Americans students serving in-school suspension." Thus, he was not an impartial decisionmaker. As for the equal protection claim, the student contended the disciplinary action taken against him was escalated to give the appearance of being sufficiently strict with white students and to improperly placate real or anticipated claims of racial bias by parents of minority students. Fashion Institute of Technology v. New York State Public Employment Relations Bd., (N.Y.A.D. 1 Dept.) January 14, 2010: Labor and Employment - School violated Public Employees' Fair Employment Act by unilaterally changing wage computation for day adjunct professors. A school violated the Public Employees' Fair Employment Act by unilaterally reducing the computation period for day adjunct professors' pay per semester to 15 weeks, as opposed to past practice of basing computation on 16-week period. The practice of computing per semester pay was subject to collective bargaining. The practice was unequivocal and was continued uninterrupted for a period of time sufficient to create a reasonable expectation that the practice would continue. The school had actual and constructive knowledge of the practice. Raven v. Manatee County School Bd., (Fla.App. 2 Dist.) January 14, 2010: Labor and Employment - When teacher was directed to appear before investigator, teacher was being compelled to appear before agency in an investigation, under statute providing that any person compelled to appear before agency in investigation has right to counsel. Under Florida law, a school board policy, stating that the School Board's Office of Professional Standards (OPS) shall conduct investigations into alleged employee misconduct, established that, for the type of complaint lodged against a teacher, who was accused of inappropriate interaction with a student, the school board, as a body, had directed that all such investigations be conducted by the OPS. Because the OPS investigator was conducting the agency's investigation, when the teacher was directed to appear before the investigator for an interview, the teacher was being compelled to appear before an "agency in an investigation," as that phrase was used in the Florida statute providing that any person compelled to appear before any presiding officer or agency in investigation has the right, at his own expense, to be accompanied by counsel. This decision may not yet be released for publication. Hardwick ex rel. Hardwick v. Heyward, (D.S.C.) January 14, 2010: Civil Rights - School officials had reasonable basis for banning Confederate flag clothing. A school district and high school officials had a reasonable basis for determining that a ban on Confederate flag clothing was necessary to prevent disruption or interference with school activities. Thus, the ban did not violate student's First Amendment free speech rights. The school had a long history of racial conflict. The testimony of students and administrators showed that tension existed between black and white students during the time student the attended the school. Murray v. Eastern Kentucky University, (Ky.App.) January 14, 2010: Civil Rights - Former university employee failed to make prima facie case of discrimination against university based on gender A former university employee failed to make a prima facie case of discrimination against the university based on gender. The employee was not qualified for the full-time position she sought, because she failed to obtain her doctorate degree within the probationary period under the contract. Furthermore, she failed to identify any other employee within the school where the employee taught who was similarly situated to her yet received more favorable treatment. This decision may not yet be released for publication. Arroyo v. Mountain School, (N.Y.A.D. 1 Dept.) January 13, 2010: Torts - Vermont school was not subject to general jurisdiction in New York in student's personal injury action. A Vermont school was not subject to general jurisdiction in New York in a student's personal injury action. It offered its students bus service to New York, had $14 million invested with New York firms, and had a New York bank account. However, the school did not advertise in New York, held only three alumni-related events in New York annually, issued no bonds in New York, owned no real property in New York, and did not engage in any activities of substance in addition to solicitation. City of Herriman v. Bell, (C.A.10 (Utah)) January 13, 2010: School Districts - Utah statute allowing cities to detach from existing school district was rationally related to legitimate state purposes. A Utah statute allowing cities, through an election open only to residents in a proposed new district, to detach from an existing school district bore a rational relationship to legitimate state purposes, as required for compliance with the Equal Protection Clause. The statute supported the creation of community-based school districts, encouraged the creation of smaller school districts more responsive to the needs of students and parents, and promoted localized use of tax revenues. C.N. v. Willmar Public Schools, Independent School Dist. No. 347, (C.A.8 (Minn.)) January 13, 2010: Disabled Students - Student's failure to request due process hearing before transferring to another school district precluded IDEA claim. A special education student's failure to exhaust her administrative remedies by requesting a due process hearing before transferring to another school district precluded the student from challenging the adequacy of her prior educational services provided by former school district, under the Individuals with Disabilities in Education Act (IDEA). The IDEA required the student to request the hearing in order to preserve her claim. District of Columbia v. Straus, (C.A.D.C.) January 13, 2010: Attorney Fees - Defendant school district was not prevailing party entitled to attorney fees under Individuals with Disabilities Education Act (IDEA). The District of Columbia was not a prevailing party entitled to attorneys fees under Individuals with Disabilities Education Act (IDEA) from an attorney who initiated administrative proceedings that were eventually dismissed as moot. The dismissal of the special-needs student's suit did not protect the District, since the District had already agreed to pay for the student's psychiatric evaluation which formed the basis of the dismissed suit. Wagner v. Oneonta School Dist., (N.Y.A.D. 3 Dept.) January 12, 2010: Torts - School district did not breach duty to supervise student who was injured when classmates closed student's fingers in door. A school district did not breach its duty to supervise an eight-year-old student and her classmates. The district thus was thus not liable for the student's injuries in a negligence action brought by the student's mother. Although only one aide was monitoring two classes in a single classroom when the student's classmates unintentionally closed the student's fingers in a door, there was no evidence of any prior roughhousing by any of the students. Brookwood Presbyterian Church v. Ohio Dept. of Edn., (Ohio App. 10 Dist.) January 12, 2010: Community School Sponsorship - Department of Education had the final determination of whether the church was eligible for sponsorship. The Department of Education had statutory authority to make the final determination of whether an entity was education oriented and eligible for community school sponsorship. Therefore, the Court of Common Pleas did not have authority to conduct administrative review, as sought by a nonprofit church, of the Ohio Department's denial of the church's application for community school sponsorship. L & M Bus Corp. v. New York City Dept. of Educ., (N.Y.A.D. 1 Dept.) January 11, 2010: Transportation - Employee protection provision (EPP) in request for bids (RFB) violated public bidding law as anticompetitive. An employee protection provision (EPP) in a request for bids (RFB) issued by the New York City Department of Education (DOE) for a five-year contract to transport children participating in early intervention (EI) programs to program sites, requiring that any contract vendor who needed new employees to hire workers laid off by a competitor at the worker's same rate of pay and to maintain welfare and pension contributions, violated public bidding law as anticompetitive. The EPP did not promote cost savings and restricted the vendors' autonomy to hire nonunion workers. Union Land Owners Ass'n v. County of Union, (N.C.App.) January 11, 2010: Property and Contracts - Ordinance assessing developers for school construction was unauthorized. A county's adequate public facilities ordinance (APFO), which authorized assessment of a voluntary mitigation payment (VMP) against developers, as a condition of approval of a proposal, in order to offset the excess impact on school capacity resulting from the proposed development, was void. Zoning and subdivision statutes did not provide the county with authority to the implement the ordinance. Also, the statute setting forth counties' police power did not provide an independent source of authority. Montgomery v. Lafayette Parish School Bd., (La.App. 3 Cir.) January 11, 2010: Labor and Employment - School board overstepped its rights by unilaterally terminating claimant's supplemental earnings benefits. Under Louisiana law, a school board did not establish that the two security guard positions were "suitable" or "available," and accordingly, the school board overstepped its rights by unilaterally terminating a workers' compensation claimant's supplemental earnings benefits. While the general nature of the security guard positions were arguably within the physical limitations set forth by doctors, the nature of the job exposed the claimant to a reasonable possibility of physical altercations, which even the school board itself realized was beyond his physical abilities. This decision may not yet be released for publication. © 2010 West, a Thomson business Westlaw Integration Solutions  /  Westlaw.com