Topical Highlights - Education ©     Coverage   Help   Search Westlaw Borrero-McCormick v. University Of Health Sciences Antigua School Of Medicine, (C.A.1 (Puerto Rico)) November 20, 2009: Trial - Whether medical student completed all requisite clinical rotations in order to obtain medical degree was question for jury, in action for breach of contract. Whether a medical student completed all the requisite clinical rotations in order to obtain a medical degree was a question for the jury, in the student's action against the university for breach of contract. The district court granted the university's motion for judgment as a matter of law that was after the student rested his case. However, the district court improperly drew inferences against the student and found that he and once of his witnesses were not credible, which was impermissible. Furthermore, there was conflicting evidence as to whether the student had completed all the requisite rotations. Moreover, at the time the motion was granted, the university had not presented any evidence as to why the degree was not conferred. In re Biege, (Bkrtcy.M.D.Pa.) November 20, 2009: Scholarships and Loans - Student loan creditors could accrue, as to debtors personally, postpetition interest on nondischargeable student loan debt. Student loan creditors could accrue, as to the Chapter 13 debtors personally, postpetition interest on nondischargeable student loan debt during the course of the debtors' case, even though the debtors paid the student loan obligation in full as reflected on the proof of claim. Given the accrual of postpetition interest, the proof of claim did not encompass the entire debt between the parties. Freedom from Religion Foundation v. Hanover School Dist, (D.N.H.) November 20, 2009: Religion - Leading students in recitation of Pledge of Allegiance did not violate Free Exercise Clause of First Amendment. The act of leading elementary and middle school classes in the recitation of the Pledge of Allegiance did not place an unconstitutional burden on the students' ability to freely believe or practice atheism or agnosticism, as required for students' claims against school districts under the Free Exercise Clause of the First Amendment. The students and their parents initiated action challenging the New Hampshire School Patriot Act, which mandated that school districts to set aside time during the school day for the recitation of the Pledge of Allegiance. The Pledge was a civic patriotic affirmation, rather than a religious exercise. The inclusion of the words "under God" constituted, at most, a form of ceremonial or benign deism. The students were not required to affirm the Pledge or participate in its recitation. Gerster Sales & Service, Inc. v. Power Authority Of State Of New York, (N.Y.A.D. 4 Dept.) November 20, 2009: Property and Contracts - Bidder's appeal from judgment dismissing article 78 proceeding was moot. A bidder's appeal from a judgment dismissing an article 78 petition seeking to annul a university's award of a contract to a competitor as time-barred was moot. Notwithstanding the bidder's additional request for money damages, the contract in question had been awarded prior to commencement of the proceeding and the air cooling project was complete. Thus, the primary relief sought, annulling the determination awarding the contract and rebidding the contract, was no longer possible. Money relief could not be incidentally granted. Williams v. Underhill, (C.A.9 (Nev.)) November 20, 2009: Civil Rights - School police officer had probable cause to arrest students for criminal trespass. A school police officer had probable cause to arrest two high school students for criminal trespass. The school district's regulations made clear that violations of state law were enforced on school property. The students were well aware of the school's 15-minute rule and knew that they were not allowed on school property after the period for compulsory attendance had ended. Nor did the students have a contractual right to remain on the property after the period of compulsory attendance had ended. The students were repeatedly warned to leave the school gymnasium before their arrests, and were asked to leave, yet they refused to do so. Lopez v. Bay Shore Union Free School Dist., (E.D.N.Y.) November 19, 2009: Student Discipline - School district code of conduct provision pertaining to prohibited group affiliations was unconstitutionally vague. As a matter of first impression, the Bay Shore Union Free School District's code of conduct provision relating to prohibited group affiliations, which provided that any activity, affiliation, and/or communication in connection with a non-school sanctioned club or group, including fraternal organizations or gangs, was prohibited, was unconstitutionally vague. The district court focused on the word "gang" in the rule. The court also found significant ambiguity in the terms "activity," "affiliation," and "communication" as used in the provision. Those terms all had broad general meaning, so that the rule could be applied to virtually any action or communication related to a "non- school sanctioned" group, regardless of how benign the act or word. Smith ex rel. Smith v. Seligman Unified School Dist. No. 40 of Yavapai County, Ariz., (D.Ariz.) November 19, 2009: Student Discipline - Suspension of public school student did not violate her constitutional rights. A thirteen-year-old public school student was not denied due process prior to receiving two temporary school suspensions of less than ten days each for her alleged use of alcohol and marijuana on school premises. The student was informed of what she was being accused of and the basis of the accusations, and she was given an opportunity to respond. In addition, the student's parents were not denied due process when the school did not timely notify them of their daughter's offense, in violation of the district's notification policy. Esparo v. Buffalo Bd. Of Educ., (N.Y.A.D. 3 Dept.) November 19, 2009: Labor and Employment - Inconsistencies in a decision of the Workers' Compensation Board precluded meaningful appellate review. Inconsistencies in a decision of the Workers' Compensation Board precluded meaningful appellate review of its determination that an injury sustained by a teacher's aide was an aggravation of prior compensable injuries, thus warranting remittal for further findings. Although the Board determined that the aide suffered an accident in 2006, it was unclear whether the Board found that the injury arising out of that accident was "new," such that a fresh award was warranted. Moreover, in finding a causal relationship to 1999 neck injuries, the Board explicitly and exclusively credited medical testimony of two physicians who testified that the 2006 injury was unrelated to the injuries sustained in 1999. Yarbrough v. Texas A & M University-Kingsville, (Tex.App.-Corpus Christi) November 19, 2009: Labor and Employment - Public university violated statute allowing employees to present grievances concerning conditions of work. The exclusive remedy provided by a public university employer, in allowing an associate professor to rebut her employee evaluation to the very supervisor, who crafted the negative narrative in her evaluation in the first place, failed to comply with the requirement that employees not claiming the right to strike have access to persons in position of authority who could remedy the grievance. Thus, the employer violated the provision in the government code protecting the right of such employees to present their grievances concerning their wages, hours of employment, or conditions of work. Townsend v. Antioch University, (Ohio App. 2 Dist.) November 19, 2009: Labor and Employment - Tenured professors could not obtain specific performance of personal-services contract with operator of private college. Tenured professors essentially sought specific performance of a personal- services contract, which was not an available form of relief, by seeking an injunction requiring the operator of a private college to use "less drastic means" to alleviate a financial crisis than suspending the college's operations and terminating their employment. Under a faculty policies and procedures manual that the parties agreed constituted the contract, "less drastic means" necessarily would require rehiring the professors. Geldzahler v. New York Medical College, (S.D.N.Y.) November 19, 2009: Labor and Employment - Former director's allegation was sufficient to state claim under Whistleblower Law against college. A former director's allegation that he was terminated for informing a medical college, his employer, that it was failing to adhere to education standards issued by a private accreditation body was sufficient to state a claim against the college under New York's Whistleblower Law, even if the private accreditation body's standards were not incorporated into state law. The director in good faith reasonably believed that the standards were adopted pursuant to law. State ex rel. Hamill v. Ohio State Univ., (Ohio App. 10 Dist.) November 19, 2009: Labor and Employment - Employee was not entitled to writ of mandamus ordering state university to promote him to the position of program coordinator. Under Ohio law, an employee was not entitled to a writ of mandamus ordering a state university to promote him to the position of program coordinator. The position for which the employee sought a promotion was an unclassified professional position, and as such, the university was not required to follow the various provisions of the Ohio Administrative Code which related to transfers and promotions within the classified civil service. The employee did not have a clear legal right to be promoted to the position of program coordinator. Stucky v. Department Of Educ., (C.A.9 (Hawai'i)) November 19, 2009: Labor and Employment - Hawaii Education Department and individuals were entitled to summary judgment on former teacher's retaliation claim. The Hawaii Department of Education, a principal, a superintendent and an area superintendent were entitled to summary judgment on a former teacher's retaliation claim. While the teacher established a prima facie case of retaliation based on her suspension and termination, she failed to rebut the defendants' legitimate, nonretaliatory reasons for each adverse employment action with specific and substantial evidence of pretext. The teacher's vague allusions to her previous lawsuit and her conclusory, unsupported allegations of animus and due process violations in her grievance proceedings were insufficient to meet her burden on summary judgment. Crary v. East Baton Rouge Parish School Bd., (C.A.5 (La.)) November 19, 2009: Labor and Employment - Stated reason for discharge of special education director was not pretext for discrimination on basis of race, sex or age. Even if a 63-year-old white female special education director was constructively discharged and replaced by a younger, black male, the school board's stated reason for the discharge was not a pretext for discrimination on the basis of race, sex or age as would violate Title VII or the Age Discrimination in Employment Act (ADEA). The only evidence of discrimination was a statement by the head of the board's human resources department that it was important to the superintendent that the board project the image of youth and vitality when recruiting new teachers, which did not implicate the director's position or responsibilities. State v. Barnes, (Or.App.) November 19, 2009: Crimes - The criminal trespass warning was a lawful order that excluded defendant from university's campus. Because a public university provided the defendant with an opportunity for review of his criminal trespass warning and the defendant did not use the review process that the university provided, the defendant could not later argue that the university denied him procedural due process. Consequently, the criminal trespass warning was a lawful order that excluded the defendant from the university's campus for purposes of the Oregon statutes providing that a person commits the crime of criminal trespass in the second degree if the person enters or remains unlawfully in or upon the premises and a person enters unlawfully if the person enters premises that are open to the public after being lawfully directed not to enter the premises. Waslow v. Pennsylvania Dept. of Educ., (Pa.Cmwlth.) November 19, 2009: Compensation and Benefits - Letter from Department of Education to charter school was a final adjudication of school's claims. The Pennsylvania Commonwealth Court has held that a letter from the Department of Education to a charter school constituted a final adjudication of the schools claims. The school had sought reimbursement for regular and special education students enrolled in the school. The letter from the Department, in addition to denying the school's claims, attempted to permanently foreclose the school's opportunity to further assert its alleged rights by stating the letter was not an adjudication. Beglin v. Hartwick College, (N.Y.A.D. 3 Dept.) November 18, 2009: Torts - Factual issues precluded summary judgment for college on student's personal injury claim. Material issues of fact existed as to whether a college had notice of the dangerous condition of a weight machine in the college's fitness center that allegedly caused a student's injury. In addition, factual questions existed as to whether an accessory weight was being used at the time of the student's accident and whether such use was the cause of a weight jam, and as to whether the student ignored a warning label on the weight machine when he placed his hand beneath the weights on the machine. These issues precluded summary judgment for the college on the student's personal injury claim. In re Request for Transfer of Territory from the Franklin City School Dist., Warren Cty., to the Middletown City School Dist., Butler & Warren, (Ohio App. 10 Dist.) November 18, 2009: School Districts - Evidence supported denial of school district's request for a transfer of school territory following annexation. Evidence supported the denial of a school district's request for a transfer of school territory following a city's annexation of the land. The school district waited more than eight years after the city's annexation of the majority of the land to request the transfer, after the land had been developed and increased greatly in value and plans for the construction of a major hospital complex were announced. This evidence supported a finding of undue delay and the existence of a potential tax grab. In addition, there was insufficient evidence that the proposed transfer was in the best and ultimate good of the pupils concerned. Newfield Cent. School Dist. v. New York State Div. of Human Rights, (N.Y.A.D. 3 Dept.) November 18, 2009: School Districts - School district failed to exhaust its administrative remedies, as required to seek writ of prohibition against agency. A school district failed to exhaust its administrative remedies, as required to commence a proceeding under Article 78, seeking to prohibit the State Division of Human Rights from investigating discrimination complaints against it. The administrative hearing process had not been completed. It was not yet certain that the SDHR would not find for the school district as to the charges of discrimination levied against it or that requiring complete exhaustion before the SDHR would be a futile exercise. Moreover, the school district had not shown that it would suffer irreparable harm by proceeding with the hearings prior to a judicial determination as to the SDHR's jurisdiction to investigate and adjudicate the complaints. Mirabile v. City Of Saratoga Springs, (N.Y.A.D. 3 Dept.) November 18, 2009: School Districts - School district was not "involved agency" that had to be included in SEQRA process for proposed recreational facility. A school district was not an "involved agency" that had to be included in the review process under the State Environmental Quality Review Act (SEQRA) for the city's proposed construction of a public indoor recreational facility. The facility contemplated a use which was consistent with provisions in a deed indicating that the property on which the facility was to be built would revert back to the school district if it was no longer used by the city for recreational or playground purposes. Moreover, the school district was not an agency which had jurisdiction to fund, approve, or directly undertake the project, as required for it to be an "involved" agency. Workman v. Mingo County Schools, (S.D.W.Va.) November 18, 2009: Religion - County board of education was entitled to Eleventh Amendment immunity. A county board of education was an arm of the state under West Virginia law, and therefore, was entitled to Eleventh Amendment immunity from a mother's action that the denial of a religious exemption from mandatory vaccination requirements for her child to attend public school violated the First, Fifth and Fourteenth Amendments and state statutes. The state board conducted a takeover of the county board per a state statute, and effectively controlled the county board. Richardson v. Winthrop School Dept., (Me.) November 18, 2009: Labor and Employment - Employment contract limited principal's entitlement to vacation pay upon retirement to 30 days. An employment contract's provision stating that a high-school principal in Maine would be paid up to 30 days of accumulated vacation time upon retirement from the school system limited the principal's entitlement to vacation pay upon retirement to 30 days. The principal had argued that the contract permitted unlimited accrual of vacation time by the use of the word "accumulated." This decision may not yet be released for publication. Schechter v. Georgia State University, (C.A.11 (Ga.)) November 18, 2009: Labor and Employment - Former university employee did not establish causal relation between her protected activity and non-renewal of her contract. A former state university employee did not establish a causal relation between her protected activity and the non-renewal of her contract. Thus, she failed to establish a prima facie case of retaliation under Title VII. The university had renewed her contract with "serious reservations" before her gender discrimination complaint. There was a five-month gap between her complaint and the negative evaluation on which the non-renewal was based. Parker v. Board Of Sup'rs University Of Louisiana-Lafayette, (C.A.5 (La.)) November 18, 2009: Judgment - Relief from a judgment dismissing an age discrimination action against a university was not warranted. A plaintiff who brought an age discrimination action against a university that was the recipient of federal financial assistance was not entitled to relief from a judgment dismissing the action for failure to meet notice requirements. Rather than curing the defects in the original pleading, the proposed amended pleadings confirmed that the plaintiff did not satisfy the 30- day notice requirements. Hogan v. Cuomo, (N.Y.A.D. 3 Dept.) November 18, 2009: Compensation and Benefits - Subpoenas issued during investigation of allegedly fraudulent pension benefits claims by attorney for schools were justified. The attorney general's issuance of a subpoena ad testificandum and subpoena duces tecum, demanding production of documents from the recipient of public pension benefits for his service as an attorney for multiple school districts, was justified. The attorney general was authorized to issue subpoenas during investigation of recipient's alleged fraudulent benefits claims. The subpoenaed documents were relevant as reasonably related to the investigation. And a preliminary investigation provided the attorney general with a legal and factual basis to suspect that the recipient worked as an independent contractor, ineligible for public pension benefits, rather than as a salaried school district employee eligible for benefits. Rosario de Leon v. National College of Business & Technology, (D.Puerto Rico) November 18, 2009: Civil Rights - Private college instructor was not acting under color of state law when she gave student failing grade allegedly for providing spiritual counseling to patient. A private college nursing instructor was not acting under the color of state law when the instructor gave a student a failing grade allegedly because the student provided spiritual counseling to a patient. The provision of higher education, although recognized by the constitution for the Commonwealth of Puerto Rico, was not a public function. Nor did the mere fact that the college received federal funding and was accredited by the Commonwealth establish that the Commonwealth had insinuated itself into a position of interdependence with the college such that the Commonwealth was a joint participant in college's instructor's decision. Finally, the Commonwealth did not exercise coercive power over or provide significant encouragement to the college, such that the instructor's decision to give student the failing grade was a decision of Commonwealth. Morris v. Florida Agricultural and Mechanical University, (Fla.App. 5 Dist.) November 17, 2009: Student Discipline - State law school student was entitled to proper notice and hearing before he was expelled. A state law school, as a state agency subject to the provisions of the Administrative Procedure Act (APA), was required to afford its student with proper notice and a hearing before it expelled him. The primary reason for the student's expulsion was alleged fraudulent misconduct rather than poor academic performance. This decision may not yet be released for publication. Rosinsky ex rel. Rosinsky v. Green Bay Area School Dist., (E.D.Wis.) November 17, 2009: Disabled Students - ALJ determination that school district developed adequate transition plan under IDEA was supported by substantial evidence. An administrative law judge's (ALJ) determination that a school district developed and implemented a transition program that improved the employability skills and supported post-secondary transition goals for a student with Fragile X syndrome, in compliance with Individuals with Disabilities Education Act (IDEA), was supported by administrative record. The IEPs contained detailed transition statements which included suggested courses of study, instruction, employment, post-school adult living, daily living, community experiences, functional vocational assessment, and related services. In addition, the IEPs contained measurable post-secondary goals. The student's work experience coordinator testified that the student had made progress. Finally, the expert testimony on Fragile X syndrome, indicating that the student's transition program did not include enough variety, was discounted based on the expert not being a special education expert and fact that she had not reviewed the student's most recent transition assessment. American Civil Liberties Union of Florida v. Miami-Dade County School Bd., (U.S.) November 17, 2009: Civil Rights - Standard for reviewing injunction barring school board from removing from school libraries book on life in Cuba -- Certiorari Denied The United States Supreme Court has refused to grant certiorari in a case in which a divided panel of the Eleventh Circuit reversed a district court's order enjoining the Miami-Dade County School Board from removing the book A Visit to Cuba, and its Spanish-language counterpart, Vamos a Cuba!, from school libraries. Contrary to the district court, the Eleventh Circuit majority found that the school board removed the book based on factual inaccuracies and omissions, which included that the lives of children in Cuba are like the lives of children in the United States. The majority also disagreed with the district court that the school board acted with the intent of denying schoolchildren access to ideas with which board members disagreed and that the book's inaccuracies were used as a pretext for enforcing a politically orthodox view opposing the Castro regime. The dissent agreed with the majority that, in the First Amendment context, the district court's findings of "constitutional facts," such as the board's motive in making the removal decision, were subject to de novo review. The dissent contended, however, that the majority owed greater deference to the district court's other findings of fact, such as that many of the proffered inaccuracies in the book were of little consequence and that many of the omissions were appropriate to omit given the age level and purpose of the book. The dissent concluded that the district court had not abused its discretion in enjoining the book's removal. The petition for certiorari argued that are a district court's findings on motivation, intent, pretext and credibility in a First Amendment case are entitled to deference. (Case below: American Civil Liberties Union of Florida, Inc. v. Miami-Dade County School Bd., 557 F.3d 1177 (C.A.11-Fla. 2009), reh'g and reh'g en banc den. (C.A.11-Fla. 2009).) DePree v. Saunders, (C.A.5 (Miss.)) November 16, 2009: Labor and Employment - University president was entitled to qualified immunity from liability under 1983 for alleged First Amendment retaliation. A Mississippi university president was entitled to qualified immunity from liability under 1983 for alleged violations of a tenured professor's rights to freedom of speech. Even if the professor's removal from his teaching duties and eviction from his office in the College of Business would support a First Amendment retaliation claim, no clearly established law informed the president that the particular discipline she imposed, which fell far short of demotion or removal, constituted an "adverse employment action." Other faculty members and administrators were not liable under a "cat's paw" theory as they merely contributed to the president's decisionmaking process. There was no evidence they exerted influence over the president in such a way as to coopt her decisionmaking. Keene v. Zelman, (C.A.6 (Ohio)) November 16, 2009: Disabled Students - No special circumstances militated against awarding attorney fees to parents under IDEA. No special circumstances militated against awarding attorney fees to parents under Individuals with Disabilities Education Act. The state defendants were not blameless regarding parents' claims because they were charged with establishing the due process procedures that provided the impetus for parents' successful lawsuit. Federal Way School Dist. No. 210 v. State, (Wash.) November 16, 2009: Compensation and Benefits - Disparate school employee salary figures in school funding formulas under Basic Education Act did not violate state constitution. Disparate school employee salary figures contained in the state school funding formulas under the Washington Basic Education Act of 1977 did not violate provisions of the state constitution requiring uniform and ample state funding for education. A school district, along with individual teachers, parents, and students in the district, brought an action against the state seeking a declaratory judgment that the disparate salary figures were unconstitutional. The Washington Supreme Court held that the state constitution, although requiring uniformity in educational programs provided, did not require uniformity in the minutiae of funding for all districts in the state. The Court also held that the individual plaintiffs lacked standing under the Uniform Declaratory Judgments Act to challenge the legislature's funding formulas. Ahmed v. Board Of Regents Of The University System Of GA, (C.A.11 (Ga.)) November 16, 2009: Civil Rights - Limitations period on university employee's administrative discrimination claim could not be tolled. Neither the university employee's status as a pro se litigant nor his alleged ignorance about the administrative process constituted the type of extraordinary circumstances that warranted equitable tolling of the limitation period for filing his administrative employment discrimination claim, particularly when the state agency informed him of the strict deadline. Washington Dist. 50 Schools v. Illinois Workers' Compensation Com'n, (Ill.App. 3 Dist.) November 15, 2009: Labor and Employment - Time for which teacher was retained to work defined her "employment" with school district for purposes of workers' compensation statute providing that third method for calculating an average weekly wage applies when employment prior to injury extends over a period of less than 52 weeks. The time for which a teacher was retained to work defined her "employment" with the school district for purposes of the Illinois workers' compensation statute providing that the third method for calculating an average weekly wage applies when the "employment" prior to the injury extends over a period of less than 52 weeks. Since the time for which the teacher was retained to work prior to her injury only extended over a period of 39 weeks, the third method of calculating average weekly wage was applicable. This was an issue of apparent first impression. This decision may not yet be released for publication. Scott v. Retz, (Ind.App.) November 13, 2009: Torts - Where hospital operator had control of used needles prior to its employee's injury, university that employed nurse who disposed of needles was not liable for negligence. The operator of a hospital acted as an intervening agency between a nurse's conduct in depositing a used uncapped needle in the restroom trash and an investigator's injury when stuck by the uncapped syringe while investigating missing narcotics at the university hospital. Thus, the university's alleged negligence in retaining and supervising the nurse was not a proximate cause of the investigator's injury. The hospital operator and the investigator's fellow employees had knowledge and control of the uncapped needle prior to the injury, and the hospital operator, not the university, was in a position to prevent the injury once its employees took custody and control of the bag containing needles. Stillwater Cent. School Dist. v. Great American E & S Ins. Co., (N.Y.A.D. 3 Dept.) November 13, 2009: Torts - School district, as owner of football field, was an additional insured, within meaning league's insurance policy. A school district, as the owner of a football field and the bleachers that were loaned to a youth football team that was a member of youth football league, was an additional insured, within meaning of an endorsement in the league's policy. The endorsement operated to modify the policy to include as an additional insured any owners of premises loaned to league. Lowery v. Jefferson County Bd. of Educ., (C.A.6 (Tenn.)) November 13, 2009: School Boards - School board's denial of plaintiffs' request to speak amounted to content-neutral time, place and manner regulation. A school board's denial of three parents and their lawyer's second request to speak at a school board meeting under the school board's policy, permitting the director of schools to take appropriate steps to determine that appeals or appearances before the board were not frivolous, repetitive, or harassing in nature, amounted to a content-neutral time, place and manner regulation, under the First Amendment. The board policy's stated justifications included allowing everyone a fair and adequate opportunity to be heard, assuring that the regular agenda of the board was completed, and recognizing the voluntary nature of the board's time and using that time efficiently. Unstructured, chaotic board meetings could deny other citizens the chance to make their voices heard. In addition, the school board's policy prohibited speech only when it was "repetitive," "harassing" or "frivolous," and evidence supported the finding that the parents and their lawyer's request was denied on the ground that their speech fell into one of the exceptions. Harrell v. Alabama Dept. Of Educ., (C.A.11 (Ala.)) November 13, 2009: Labor and Employment - Proffered legitimate, nondiscriminatory reason for not promoting black female to supervisor position was not pretextual. The reasons proffered by the Alabama Department of Education, its director, and the State Superintendent of Education for promoting two white females to supervisor over a black female, their higher annual performance scores and better performances during interviews, were legitimate and nondiscriminatory and were not shown to be a pretext for race discrimination. While the director was not aware of specific performance scores at the time he made his decision, he was aware the white candidates had higher annual performance scores. The plaintiff failed to rebut head on the individual defendants' reasons for not promoting her, and instead simply quarreled with their decision to promote them over her. Garner v. State, Dept. of Educ., (Hawai'i App.) November 13, 2009: Compensation and Benefits - Substitute teacher's pay is tied to that of a regular full-time certified teacher based on an appropriate four years of college education A substitute teacher's pay is tied to that of a regular full-time certified teacher based on an appropriate four years of college education and other Department of Education (DOE) requirements, notwithstanding changes in the "Class II" classification designation. Teacher qualifications, not the classification title, connected substitute teacher pay to that of certain union member teachers. This decision may not yet be released for publication. Richerson v. Beckon, (C.A.9 (Wash.)) November 13, 2009: Civil Rights - Decision to transfer instructional coach into teaching position because of her blog did not violate First Amendment. Statements made by a school district employee in her internet blog fatally undermined her ability to enter into trusting relationships as an instructional coach. Thus, the employee's transfer into a teaching position did not violate her free speech rights. The employee's position required her to enter into mentor relationships with less experienced teachers in order for her to give honest, critical, and private feedback. Several individuals refused to work with her after reading the blog. Lovett v. Capital Principles, LLC, (Ga.App.) November 12, 2009: School Boards - Anti-SLAPP statute applied to slander action by manager of school system's technology department against school board employees. The anti-SLAPP (Strategic Lawsuits Against Public Participation) statute applied to an action by the former manager of a school system's technology department, who alleged that school board employees who were hired to make recommendations regarding implementation of a computer software program slandered her and interfered with her business relationship with the school system. Therefore, the former manager was required under the anti-SLAPP statute to file a verification of her complaint. The comments in question could reasonably construed as constitutionally protected speech. Alston v. Massachusetts, (D.Mass.) November 12, 2009: Labor and Employment - Former school teachers failed to exhaust administrative remedies, as prerequisite to suit under both Title VII and Massachusetts' anti- discrimination law. Former Massachusetts school teachers failed to exhaust their administrative remedies with respect to their claim of discriminatory impact in teacher licensure examinations, as a prerequisite to filing suit against the Commonwealth, the city, and others under both Title VII and Massachusetts' anti-discrimination law. The Massachusetts Commission Against Discrimination (MCAD) had initial jurisdiction over the teachers claims, but the teachers had not filed the charge with MCAD until after they filed their suit. MCAD had not terminated the case, nor had 60 days lapsed from the date of filing the charge with MCAD before the teachers filed suit. Ex parte Birmingham Bd. of Educ., (Ala.) November 12, 2009: Labor and Employment - Teachers are not entitled, in regard to supplemental duties contract, to same nonrenewal notice afforded them in teaching functions. The Supreme Court of Alabama held, as a matter of apparent first impression, that a teacher who performs supplemental duties independent of his or her teaching function, such as extracurricular coaching, is not entitled, in regard to his or her supplemental duties contract, to the notice protections set forth in the section of the Teacher Tenure Act (TTA) that provides for a teacher's employment unless and until notification on or by the last day of term. A supplemental employee, such as a coach, a football worker, or a support- activity sponsor, need not be state certified as a "teacher," as defined by the TTA. Applying the holding to the case at bar, regardless of whether the plaintiff teachers with supplemental contracts were afforded pre-end-of-term notice of nonrenewal in the past, the TTA did not require such notice. This decision may not yet be released for publication. University of Cent. Florida Bd. of Trustees v. Turkiewicz, (Fla.App. 5 Dist.) November 12, 2009: Labor and Employment - University employee who followed university's multi-step grievance process failed to exhaust administrative remedies under whistleblower's act. A university employee who received notice that he would not be reappointed as the university's director of police and public safety after he reported alleged financial improprieties and regulatory violations committed by the university to a university vice president, failed to exhaust administrative remedies under the Whistleblower's Act before filing a civil lawsuit. Although the employee followed the university's multi-step grievance process, and filed a civil action within 180 days of receiving the university's final order upholding his non-reappointment, he failed to file a complaint with the Florida Commission on Human Relations (FCHR) before filing his civil lawsuit. As a matter of first impression, the District Court of Appeal held that the statute providing that an employee of a state agency who is discharged or subject to adverse personnel action for engaging in whistleblowing activity "may file a complaint" with the FCHR created pre-suit requirement that one who wishes to pursue a lawsuit or administrative proceeding for a violation of the Whistleblower's Act must first file a complaint with the FCHR. This decision may not yet be released for publication. Munn-Goins v. Board of Trustees of Bladen Community College, (E.D.N.C.) November 11, 2009: Labor and Employment - Community college instructor's distribution of salary information to her colleagues did not involve matter of public concern. A community college instructor's activity in requesting the current salary of each college employee and the date and amount of each employee's most recent salary adjustment and distributing that information to her colleagues without comment did not involve a "matter of public concern" that would support her claim that her contract was not renewed in retaliation for protected speech. The court reached that conclusion after examining the content, form and context of her activity. Someone had left copies of the salary information in faculty mailboxes with "UNFAIR!" and "INEQUITY IS AMAZING!" scrawled on them. The instructor acknowledged she had obtained the salary information and given it to four colleagues, but denied placing the copies in the faculty mailboxes. The vice-president of curriculum and instruction had ordered remaining copies of the salary information, which was publicly accessible by North Carolina statute, removed from the mailboxes, deeming inappropriate the fact someone had manipulated the information and written comments on it before distribution. The court concluded it did not have to balance the government's interest in maintaining discipline and ensuring harmony or determine whether the college imposed a reasonable limitation on that activity. St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc., (D.D.C.) November 11, 2009: Judgment - District court did not improperly evaluate truthfulness of witness when determining motion for summary judgment. The district court did not improperly evaluate the truthfulness or credibility of a sprinkler system inspector's employee when determining motions for summary judgment as allegedly indicated by the court's purported comment on a single inconsistency in the employee's deposition testimony. Reconsideration of the order granting summary judgment against the inspector was thus not required in an action by a property insurer as subrogee of a university to recover for water damage to the insured premises when a tee fitting froze and burst. The testimony was referenced in the background section of the court's memorandum opinion to provide context for the parties' arguments on summary judgment motions and did not provide the basis on which the court relied to resolve motions. Moreover, the court in fact expressly stated that the testimony was not refuted by contradictory evidence. U.S. v. Board of Educ. of City of Chicago, (N.D.Ill.) November 11, 2009: Desegregation - Chicago school district had achieved full and complete unitary status in school desegregation case A school district had achieved full and complete unitary status in a school desegregation case brought by the United States as to the remaining issues of limited student assignment, transportation, and school-based administrator provisions. The United States did not present any affirmative evidence during the hearing to dispute that the school board had achieved unitary status, the board effectively had achieved unitary status as to faculty integration, extra- curricular activities, facilities, and overarching budget considerations, and there was ample evidence of substantial and material changes in the board's structure and method of operation to permit confidence about future lawful compliance. King v. Pioneer Regional Educational Service Agency, (Ga.App.) November 10, 2009: Torts - State Department of Education had no tort liability under IDEA for student's suicide. The Individuals with Disabilities Education Act (IDEA) imposed no tort liability on the Georgia Department of Education (DOE) with respect to the suicide of a student while confined in a time-out room at a school for students with severe emotional behavior disorders. Although the IDEA required that each disabled child within the DOE's jurisdiction be provided a free and appropriate public education, no DOE officials or employees participated directly in sending the student to the time-out room. Moreover, the DOE never exercised any control or oversight over the school's use of its time-out rooms other than generally reviewing the school's policies for compliance with the IDEA. Agrawal v. Board of Regents of the University of Oklahoma, (C.A.10 (Okla.)) November 10, 2009: Standards and Competency - Plaintiff's memorandum brief was functional equivalent of timely notice of appeal of order enforcing settlement agreement. The plaintiff's memorandum brief was the functional equivalent of a timely notice of appeal of the district court minute entry which enforced the plaintiff's agreement with the university which settled the plaintiff's challenge to his academic dismissal. The plaintiff's brief set forth the decision being appealed and was filed well within the 180-day period applicable when the district court did not set out its judgment in a separate document. Johnson v. Cleveland City School Dist., (C.A.6 (Ohio)) November 10, 2009: Labor and Employment - School district did not violate ADA's reasonable accommodations requirement. A school district did not violate the Americans with Disabilities Act's reasonable accommodations requirement by failing to create an academic interventionist position for an employee with cervical myelopathy and by failing to provide her with a position teaching a small group of students. The positions the employee requested did not exist in the district, and thus they were not reasonable accommodations under the Act. Camden County Council on Economic Opportunity v. U.S. Dept. of Health and Human Services, (C.A.D.C.) November 10, 2009: Federal Funding - Department of Health and Human Services did not act arbitrarily when it decided to terminate Head Start grant. The Department of Health and Human Services did not act arbitrarily and capriciously when it decided to terminate Head Start grant, issued to grantee to provide pre-school services to low-income children, for unremedied safety- related deficiency, even though the termination was based on later-discovered problems at a site different from the sites initially inspected. After receiving the initial notice of deficiency the grantee was required to ensure that it did not have undesirable and hazardous materials and conditions at any of its playgrounds, not just the ones initially inspected. Ohio Council 8, Am. Fed. of State, Cty. & Mun. Emps., AFL-CIO v. Cuyahoga Community College, (Ohio App. 8 Dist.) November 10, 2009: Appeals - Trial court's order granting union's motion to vacate arbitration award and remanding grievance to arbitrator for hearing on the merits was not final appealable judgment. Under Ohio law, a trial court's order granting a union's motion to vacate the arbitration award and remanding the grievance to the arbitrator for a hearing on the merits was not a final judgment on the merits of the underlying grievance, and therefore, the order was not appealable. Although the arbitrator heard evidence regarding the merits of the union's grievance against a community college, he did not reach a decision on the merits. Instead, the arbitrator found that the union had failed to submit the grievance to the arbitration association in a timely manner, and therefore, the grievance was denied. On appeal, the trial court vacated the arbitrator's decision and remanded the case for a hearing on the merits of the grievance. H.H. ex rel. H.F. v. Moffett, (C.A.4 (Va.)) November 9, 2009: Disabled Students - Teacher and assistant were not entitled to qualified immunity in disabled student's 1983 action. A special education teacher and a teaching assistant were not entitled to qualified immunity in a disabled student's 1983 action alleging she was strapped into her wheelchair for extended periods of time in violation of her due process interest in liberty from bodily restraint. Although the student could not be safely seated in her chair without the use of some restraint, the teacher and assistant strapped the student into her chair out of malice, as evidence by their hostility and abusive remarks. Steele v. Mayoral, (Or.App.) November 9, 2009: Civil Rights - Actions of school principal towards school employee did not rise to level of a material adverse action under Title VII. The alleged actions of a school principal towards a school employee, including making threatening comments, watching the employee closely, and suggesting that her job might be eliminated, did not rise to the level of a material adverse action for purposes of employee's retaliation claim under Title VII. The actions occurred over the course of approximately four days which immediately preceded principal's placement on leave, and the employee was not deterred from making reports of principal's conduct. Vicky M. v. Northeastern Educational Intermediate Unit, (M.D.Pa.) November 6, 2009: Torts - Supervisory defendants were immune from tort claims based on teacher's abusive conduct. Although supervisory defendants' conduct in failing to investigate allegations of a teacher abusive conduct toward her students potentially rose to the level of deliberate indifference, they were immune from tort claims under Pennsylvania's Political Subdivision Tort Claims Act where there was no evidence that they intended abuse of students to occur in teacher's classroom, or that they were substantially certain it would occur. Isler v. Keystone School Dist., (C.A.3 (Pa.)) November 6, 2009: Labor and Employment - Bus driver's report to school district officials about disabled student's behavior was not protected speech under First Amendment. A bus driver's reports to public school district officials regarding the behavior of a disabled student on his bus did not amount to "protected speech," for purpose of the bus driver's First Amendment retaliation claim, arising from the school district's failure to renew his contract. The bus driver had an affirmative, contractual duty to report any student incidents that occurred on his bus. So, the driver's reports to the officials were wholly within the scope of his employment responsibilities. D.K. ex rel. G.M. v. Solano County Office of Educ., (E.D.Cal.) November 6, 2009: Disabled Students - School district was subject to joint and several liability for alleged abuse of disabled students by county employees. A local school district was subject to joint and several liability under Title II of the ADA and the Rehabilitation Act for the alleged abuse of disabled students by employees of the county office of education. The district contracted with the county office of education for special education services. The students' placement in the county office classroom rather than in the regular classroom was solely because of their disabilities. Stewart v. Charleston County School Dist., (S.C.App.) November 5, 2009: School Districts - Unified school district, rather than its constituent district had authority to set admission criteria for magnet school. A Unified school district had the ultimate authority to set the admission criteria for a magnet school within constituent school district. Although a statute granted the constituent district the authority to determine the school within its district in which any pupil would enroll, the unified district had the statutory authority to provide for intellectually gifted children a program which challenged their talents. The constituent districts only had powers bestowed upon them by statute. Since the statute did not grant the constituent district the power to set attendance guidelines at a magnet school, such power was vested in the unified district. This decision may not yet be released for publication. In re Coco, (C.A.3 (N.J.)) November 5, 2009: Scholarships and Loans - Factual issues barred summary judgment for creditor on claim that Chapter 7 debtor's student loans were dischargeable. Material issues of fact existed as to whether a Chapter 7 debtor made a good-faith effort to repay her student loans in light of her chronic medical conditions and her caring for her elderly, disabled mother until the mother's passing. These issues precluded summary judgment for the creditor on the debtor's claim seeking a determination that the debt on her loans was dischargeable under the undue hardship test, the Third Circuit Court of Appeals has held in an unpublished decision. The debtor's case did not appear to present a situation in which a debtor sought to abuse the student loan system or evade payment, the court indicated. Rather, it appeared that the debtor struggled financially, after her loans became due, for more than a decade before seeking bankruptcy relief, and, during that time, she attempted to obtain regular employment and negotiate a feasible repayment plan, despite her medical problems and caring for her mother. Gilmore v. University of Rochester, (W.D.N.Y.) November 5, 2009: Labor and Employment - University's decision not to rehire employee who was terminated for cause did not violate Rehabilitation Act. A university's decision not to rehire a former employee, who had been discharged due to excessive tardiness, failure to meet minimum standards, and using profane language, did not constitute discrimination under the Rehabilitation Act or the New York State Human Rights Law (HRL). The employee had suffered from cocaine addiction, but claimed that she had been drug-free for one year prior to her application for reemployment. There was nothing in the employee's application indicating that there had been any change in her circumstances that would have rendered her more qualified to work for the university than she had been when she was fired. Nor was there evidence that anyone at the university who reviewed her application was aware that her prior termination had anything to do with her addiction. Canaday v. Midway Denton U.S.D. No. 433, (Kan.App.) November 4, 2009: Torts - Issue as to whether sexual abuse of student by teacher was foreseeable precluded summary judgment for school district. Genuine issues of material fact as to notice and foreseeability precluded summary judgment for a school district on a former student's negligence and intentional tort claims. The student alleged he was sexually abused by a teacher, and claimed that the district had adequate notice of the teacher's propensities. There was substantial evidence of notice to the district superintendent that the teacher had a proclivity to inappropriate relationships with students and that the superintendent had direct knowledge of a potentially inappropriate relationship between the teacher and the student. While it was possible that a jury could decide that the superintendent's investigation into allegations discharged any further duty, foreseeability was a genuine issue of material fact. Madison Local School Dist. Bd. of Edn. v. OAPSE/AFSCME Local 4, AFL-CIO, (Ohio App. 11 Dist.) November 4, 2009: Labor and Employment - Arbitrator's decision sustaining union's grievance drew its essence from collective bargaining agreement and was responsive to the issue posed for arbitration. Under Ohio law, an arbitrator's decision sustaining a union's grievance, that a school board violated the parties' collective bargaining agreement (CBA) when it reduced the hours of work for transportation employees pursuant to a projected fiscal shortfall that did not exist at the time of the reduction and, ultimately, never materialized, drew its essence from the CBA and was responsive to the issue posed for arbitration. In other words, the arbitrator construed and applied the CBA and acted within the scope of his authority in doing so. The board was not free to engage in a wholesale unilateral retreat from its contractual obligations with bus drivers just because it thought it had a financial problem, and in fact, there was no actual financial crisis. Trefelner ex rel. Trefelner v. Burrell School Dist., (W.D.Pa.) November 4, 2009: Extracurricular Activities - Parochial school student could compel school district to permit him to participate in high school marching and jazz bands. A parochial school student and his parents were entitled to a temporary restraining order (TRO) that would compel a Pennsylvania school district to permit the student to participate in certain extracurricular activities it offered. The student, who had attended public schools the previous five years and participated in the high school's marching band, wished to participate in its marching and jazz bands the following year because his school had neither. A district policy required students to be enrolled in the district where they resided in order to participate in extracurricular activities, although exceptions were made to the policy's in recognition of state laws which required that resident home schooled and charter school students be allowed to participate in such activities. The plaintiffs were likely to succeed on the merits of their claim that the policy was not facially neutral and generally applicable and would therefore be subject to heightened scrutiny, and they had shown a reasonable probability that they would prevail on the merits with respect to their claim that policy was not narrowly tailored to advance a compelling state interest. Levine v. New York State United Teachers, (N.Y.Sup.App.Term) November 4, 2009: Attorney Fees - Mathematics coach stated claim against teachers union for reimbursement of attorney fees. A mathematics coach's allegations were sufficient to state a claim against her teachers union for reimbursement of attorney fees she incurred in a criminal proceeding. The coach alleged that she was accused of attempting to cause the death of and causing serious physical injury to the principal of the public school where she worked as the result of her grievances regarding the principal that she had filed with the local superintendent The coach sufficiently alleged that the criminal charges flowed directly from her workplace relationship with the principal, as required for reimbursement under the union's policy manual. McIntyre v. Longwood Central School Dist., (E.D.N.Y.) November 4, 2009: Administrators - African-American school principal's low pay increase under collective bargaining agreement was not Title VII discrimination. The salary increase received by an African-American junior high school principal under the terms of a collective bargaining agreement (CBA) was not Title VII discrimination based on the principal's age, race, or gender in the principal's action against a school district and its superintendent and an association and its president. The principal's increase was allegedly significantly lower than that of other members of the association. However, the principal was the highest paid member of the association prior to the CBA, while many other members were among the lowest paid for their respective positions. Another African-American male member of the association received the highest salary increase. One white female association member with a similarly high salary and the same managerial level as the principal was treated the same as the principal. Three of the other four African-American association members and all seven other male association members received high levels of increases. Two of the four members of the school district's CBA negotiating team were males, one was a 56-year-old white female, and one was a 62-year-old black female principal. Hunt v. Ciminelli-Cowper Co., Inc., (N.Y.A.D. 4 Dept.) November 3, 2009: Torts - Fact issues existed as to whether snow removal contractor was negligent in college's defense and indemnification claim. Summary judgment was precluded on the third-party claim of a community college and its board of trustees, seeking defense and indemnification from a snow removal contractor in a construction worker's underlying slip-and-fall action. Genuine issues of material fact existed as to whether the contractor was negligent in its failure to remove snow from area where construction worker fell. Genuine issues of material fact existed as to whether the contractor's alleged negligence contributed to the icy conditions. Foster v. Raspberry, (M.D.Ga.) November 3, 2009: Student Discipline - Fact issues existed whether alleged strip-search of high school student violated her clearly established rights. Genuine issues of material fact, regarding whether school district officials violated clearly established federal rights of which reasonable officials would have known in conducting a strip-search of a high school student to locate an electronic device, precluded summary judgment on a qualified immunity defense to a claim brought under the Fourth Amendment by the student and her parent. Dorcely v. Wyandanch Union Free School Dist., (E.D.N.Y.) November 3, 2009: Labor and Employment - Former school psychologist failed to demonstrate pretext in equal protection claim under 1983. A former school psychologist, a Haitian male, failed to demonstrate that a middle school principal's proffered legitimate, nondiscriminatory reasons for recommending his termination, namely his lack of professionalism and negligence in meeting students' needs, was pretextual for national origin and gender-based discrimination, as required to prevail on his 1983 claim against the principal for equal protection violations. There was no evidence that the principal subjected the psychologist to any national origin or gender-related comments or criticisms. Montanez v. Educational Technical College, (D.Puerto Rico) November 3, 2009: Labor and Employment - Employee failed to meet her burden to establish a prima facie case against college under the Americans with Disabilities Act. Employee failed to meet her burden to establish a prima facie case against college under the Americans with Disabilities Act. Nothing in the record demonstrated that the adverse employment actions taken against the employee were a product of discriminatory animus prompted by her disability. While the employee did cite a number of discriminatory actions directed at her by her supervisor, she did not show that any of these actions were fostered by disability-based animus. P.P. ex rel. Michael P. v. West Chester Area School Dist., (C.A.3 (Pa.)) November 3, 2009: Disabled Students - As matter of first impression, Rehabilitation Act claim was governed by IDEA's two-year statute of limitations. As a matter of first impression, a student's claims against the school district under 504 of the Rehabilitation Act alleging he was denied a free appropriate public education (FAPE) and that the child-find obligations of the Individuals with Disabilities Education Act (IDEA) were violated was governed by the IDEA's two-year statute of limitations, rather than the state personal injury statute of limitations. The IDEA and 504 both protected disabled students and the state personal injury statute of limitations dealt with torts against person and property. There were few federal statutes as closely related. Additionally, applying the state statute of limitations could frustrate federal policy since the IDEA had two specific exceptions to its statute of limitations. George A. v. Wallingford Swarthmore School Dist., (E.D.Pa.) November 3, 2009: Disabled Students - Individuals with Disabilities in Education Act's stay-put provision required that student remain in hearing support program. A hearing-impaired student's "then-current educational placement" was in the hearing support program at a public school outside of his local school district. Therefore, the stay-put provision of the Individuals with Disabilities Education Act required that the student remain in the hearing support program pending a decision on the nature of the services he required, even though he had been temporarily placed in a county alternative school for disciplinary reasons. The student had been placed in the hearing support program, pursuant to an individual education plan, for the majority of his life, since his local school district could not meet his educational needs. Hawkins v. City University of New York, (N.Y.A.D. 1 Dept.) November 2, 2009: Labor and Employment - University terminated employee based on threats of violence and other misconduct, and not disability discrimination. A university terminated an employee based on his threats of violence against a supervisor and other misconduct. The employee's claim of disability discrimination was thus precluded. The employee submitted no evidence of a causal connection between his misconduct and his disability. Williams v. U.S. Secretary of Educ., (C.A.9 (Cal.)) November 1, 2009: Scholarships and Loans - Garnishment of wages of former student for defaulting on federal student loans was warranted. Garnishment of a former student's wages for defaulting on his federal student loans was warranted. The Department of Education provided documents to demonstrate the existence, amount, and past-due status of the debt. The pre- garnishment hearing comported with due process requirements, and garnishee received adequate notice and opportunity to be heard. C.B. v. Sonora School Dist., (E.D.Cal.) November 1, 2009: Disabled Students - School district specialist was entitled to qualified immunity. A school district's specialist, who was employed to accommodate a minor's disabilities in accordance with the Individuals with Disabilities Education Act (IDEA), was entitled to qualified immunity from the minor's 1983 claims. The specialist did not use any force whatsoever on the minor. Instead, the specialist only threated to, and then did, call the police in response to the minor's failure to follow instructions. Heike v. Guevara, (E.D.Mich.) November 1, 2009: Athletics - State university was immune from suit alleging that dismissal from basketball program was "discriminatory treatment." Congress did not abrogate a state university's Eleventh Amendment immunity from a student's suit alleging "discriminatory treatment" in violation of the Fourteenth Amendment with respect to her removal from the university's basketball program, when Congress enacted a statute precluding such immunity with respect to various federal discrimination statutes. The student did not allege any claims under Title VI, the Rehabilitation Act, Title IX, the Americans with Disabilities Act (ADA), or any other federal statute prohibiting discrimination. Kim v. Columbia University, (S.D.N.Y.) October 30, 2009: Labor and Employment - Former employee was not required to exhaust administrative remedies to dispute recapture of retirement funds. A former university employee was not required to exhaust administrative remedies to dispute the university's letter that claimed his ERISA retirement plan funds were unvested and the university could recapture the funds. Even though the letter stated the employee should contact human resources to dispute their claim, the plan document required exhaustion of administrative remedies only for a denial of benefits, the letter was not a denial of benefits, and the document did not require the employee contact human resources prior to legal proceedings. Martins v. University of Massachusetts Medical School, (Mass.App.Ct.) October 30, 2009: Labor and Employment - State university employee was preempted from joining Massachusetts Equal Rights Act (MERA) in employment discrimination action. A fired state university employee, alleging race-base employment discrimination, could not join parallel claims against the university under Massachusetts Equal Rights Act (MERA), along with claims under the state antidiscrimination law, when his case was removed to trial court after employee had exhausted his administrative remedies with the Massachusetts Commission Against Discrimination (MCAD). The antidiscrimination law provided the exclusive remedy for the university's alleged discrimination. Davenport v. Board of Trustees of State Center Community College Dist., (E.D.Cal.) October 30, 2009: Labor and Employment - Community college district was entitled to summary judgment on terminated tenured professor's Title VII retaliation claim. A terminated tenured community college professor in California failed to establish a prima facie case of retaliation under Title VII. Even if he had, the college's articulated reason for termination, the professor's harsh and inappropriate treatment of faculty members, students, and employees which violated school policy and called into question his fitness as faculty member, was legitimate and nonretaliatory. The professor failed to show that reason was a pretext to retaliate against him for complaining of sexual harassment. In re Donna Independent School Dist., (Tex.App.-Corpus Christi) October 30, 2009: Discovery - Trial court was a proper court for former CFO of school district to file petition for pre-suit depositions of board members. Trial court would not necessarily lack jurisdiction over the underlying claims of terminated CFO of school district such that it was not a "proper court" for former CFO of school district to file a petition for pre-suit deposition of school board members. The former CFO asserted that he desired to take the depositions in order to determine whether he had claims for slander and tortious interference with contract. Though the board members and the school district claimed they would be entitled to government immunity to any suit and that former CFO had not exhausted his administrative remedies, it was not clear that the CFO's claims if pursued would necessarily be against board members and the school district. Furthermore, if an action for slander or tortious interference was warranted, the former CFO would not be required to exhaust administrative remedies as he would not be asserting violations of school law or a school district employment contract. This decision may not yet be released for publication. Abano v. Suffolk County Community College, (N.Y.A.D. 2 Dept.) October 29, 2009: Torts - Community college did not have prior written notice of allegedly dangerous condition purportedly causing plaintiff's fall. Defendants in a slip and fall action involving an allegedly defective walkway on a county community college campus established their entitlement to judgment as a matter of law by demonstrating they did not have prior written notice of the allegedly dangerous condition that purportedly caused the plaintiff's fall, as required by the county charter, The plaintiff failed to raise a triable issue of fact or establish that either of the recognized exceptions to the written notice requirement applied. Soliman v. George Washington University, (D.D.C.) October 29, 2009: Civil Rights - Former member of university medical school faculty failed to state discrimination claims against university. A female doctor and faculty member formerly employed by a university medical school failed to state discrimination claims against the university under Title VII and the District of Columbia Human Rights Act (DCHRA). The doctor, who alleged a "campaign" of discrimination against her, failed to allege that she was discriminated against because of her sex. G.C. ex rel. Counts v. North Clackamas School Dist., (D.Or.) October 29, 2009: Civil Rights - A school district did not violate any substantive due process right to bodily integrity of a student with disabilities. A school district did not violate any substantive due process right to bodily integrity possessed by a developmentally disabled student regarding an alleged sexual assault or rape by a male pupil, thus precluding imposition of 1983 liability under the "danger-creation exception" to the rule that a state is not liable for failing to protect individuals from harm by third parties. The student claimed that the district had failed to train employees regarding student sex abusers. However, the district did not affirmatively place the student in a position of danger by failing to implement consequences for the male pupil's bad acts, and there was no evidence of any other sexually abusive perpetrator that the district failed to remove. People v. Kason O'Neil, (N.Y.A.D. 3 Dept.) October 29, 2009: Abuse and Harassment - Sexual abuse conviction was against weight of evidence. A jury's verdict convicting a high school track coach of sexual abuse in the third degree of a student, while he and the student were traveling in a car to practice, was against the weight of the evidence. Defendant stated that other students who attended the practice were present in the vehicle during the car ride. One of those students testified similarly, and stated that he did not witness defendant touch the student, nor hear her complain about any inappropriate behavior. The student's reliability was manifestly suspect. Multiple witnesses testified that she had a reputation for being untruthful. Students and adults associated with defendant testified as to his professional and highly respectable reputation in dealing with young athletes. Madden v. Paschen, (Ill.App. 1 Dist.) October 28, 2009: Property and Contracts - Contractors, hired by school district, were not "possessors" of school's theater at time of maintenance worker's fall into orchestra pit. A construction manager and a design consultant hired by a school district in connection with the construction of a school's theater were not "possessors" of the theater at the time of a maintenance worker's fall into an uncovered orchestra pit, and thus the maintenance worker could not recover under premises liability law. The construction manager and design consultant handed over any control they might have had pursuant to a temporary occupancy permit allowing the school to use the theater area. Further, the construction manager and design consultant were not involved in preparing the theater for occupancy under the temporary occupancy permit. This decision may not yet be released for publication. Jackson v. Roslyn Bd. of Educ., (E.D.N.Y.) October 28, 2009: Labor and Employment - A former employee was afforded sufficient post- deprivation constitutional process regarding a denial of medical benefits. The availability of an Article 78 proceeding under New York law by which a school district employee could have challenged a denial of employee disability retirement medical benefits afforded sufficient post-deprivation constitutional process to satisfy due process. A pre-deprivation process was impracticable. When his employment was terminated for cause, it was not known that he would subsequently be granted disability retirement and thus be entitled to continued medical benefits. Richard S. v. The Wissahickon School Dist., (C.A.3 (Pa.)) October 28, 2009: Disabled Students - School district did not fail to timely identify student's disabilities or provide FAPE after diagnosis. A Third Circuit panel has affirmed a federal district court decision granting a Pennsylvania school district's motion for judgment on the administrative record and summary judgment in an Individuals with Disabilities Education Act (IDEA) case. In state administrative proceedings, the parents had prevailed on the issue of whether the school district failed to timely identify the student's disabilities, but not on the issue of whether the district failed to provide a free appropriate public education (FAPE) after he had been diagnosed. Upon review, the district court decided both issues in the school district's favor. Its decision to credit the hearing officer and find that the school district did not violate its "child find" obligations during the child's seventh and eighth grade school years was not clearly erroneous. The district court also did not clearly err in finding that individualized education programs (IEPs) developed by school district were reasonably calculated to provide student a meaningful educational benefit. Horen v. Board of Educ. of City of Toledo Public School Dist., (N.D.Ohio) October 28, 2009: Disabled Students - Parents of learning disabled student could not prevail in equal protection claim against school district. Pro se parents of a severely learning disabled student could not prevail in 1983 class of one equal protection claim against a public school district and district officials. There was no showing that the defendants treated the student any differently from other similarly-situated students. Manigaulte v. C.W. Post of Long Island University, (E.D.N.Y.) October 28, 2009: Civil Rights - University professor lacked standing to pursue claim under ADA on behalf of learning-disabled students. A former university professor lacked standing to pursue a claim under Americans with Disabilities Act (ADA) that the university's first year composition program had a process model of writing that discriminated against learning-disabled students. The professor did not allege any particular injury in fact, and any harm was both conjectural and hypothetical. Furthermore, he could not bring an action on behalf of the students, nor did he identify any obstacle that prevented the disabled students from asserting claims on their own behalf. Beta Upsilon Chi Upsilon Chapter at The University of Florida v. Machen, (C.A.11 (Fla.)) October 28, 2009: Civil Rights - Christian fraternity's against University of Florida seeking recognition as student organization was moot. A Christian fraternity's action to enjoin the University of Florida from enforcing its requirement that the fraternity's constitution include a statement that it would not discriminate on the basis of religious belief or creed, and from denying the fraternity the status of registered student organization (RSO), was rendered moot when the university amended its student handbook policy to allow religious groups like the fraternity to register and in fact registered the fraternity's chapter as an RSO. The fraternity obtained the all the relief it sought. Bouriez v. Canegie Mellon University, (C.A.3 (Pa.)) October 27, 2009: Torts - Fact issue existed as to whether university's misrepresentations were a substantial factor in his failed investment. A genuine issue of material fact existed as to whether a university's misrepresentations to an investor were a substantial factor in, and thus the proximate cause of, his failed investment in a company that funded university research. Such a fact question precluded summary judgment on the investor's fraudulent and negligent misrepresentation claims. The relevant question for the district court, was whether the misrepresentations were a substantial factor in causing investor's failed investment in company that funded university's research, not in whether the misrepresentations were a substantial factor in causing a shortfall between investment and the distribution investor would receive after company's dissolution. Kahn v. Department of Educ. of City of New York, (N.Y.Sup.) October 27, 2009: Labor and Employment - Four-month limitation period for Article 78 review began to run after administrative review of school social worker's firing. A terminated probationary school social worker's claim for Article 78 review of a determination of the city department of education, its chancellor, and the school's principal to terminate her employment accrued, and the four-month statute of limitations began to run, when the social worker received the decision after the administrative review of her termination. The limitations period was also tolled by a procedural defect under a collective bargaining agreement (CBA). The chancellor's committee considered the social worker's unsatisfactory rating without the participation of a social work supervisor. Nachum Brisman v. Hebrew Academy of Five Towns & Rockaway, (N.Y.Sup.) October 27, 2009: Labor and Employment - Beth Din arbitration award, reinstating teacher to position with private school, was irrational and violated public policy. A Beth Din arbitration award, which reinstated a teacher to a tenured position at a private school and awarded him $50,000 in back pay and an annual salary of $100,000, was irrational, exceeded the Beth Din's authority, and violated public policy. The teacher's contract had expired, and thus the award forced the school to retain an at-will employee who, in the school's discretion, had a clear difference in Hashkafah, or religious philosophy, from the school's administration. This action set a precedent potentially limiting the ability of private schools to make and enforce employment decisions. Leibowitz v. Cornell University, (C.A.2 (N.Y.)) October 27, 2009: Labor and Employment - Non-renewal of university employee's employment contract was adverse employment action in Title VII case. The non-renewal of a university employee's five-year employment contract constituted an "adverse employment action," for the purpose of the employee's Age Discrimination in Employment Act (ADEA) and Title VII employment discrimination claims. Even though the university employer's decision not to renew the contract was discretionary, the employee had sought renewal of her contract, and her request was denied. Bishop State Community College v. Archible, (Ala.Civ.App.) October 27, 2009: Labor and Employment - Notices of proposed termination failed to set forth a short and plain statements of the facts required by Fair Dismissal Act. Notices of proposed termination that a state community college issued to two employees, which indicated that the employees had "committed financial improprieties in relation to the awarding of financial aid and scholarships," failed to set forth a "short and plain statements of the facts" as required by the Fair Dismissal Act. Neither notice set forth what financial improprieties had been committed so as to provide an adequate opportunity for the employees to prepare a defense to those charges. This decision may not yet be released for publication. Chiesa v. Stillwater Cent. School Dist., (N.Y.A.D. 3 Dept.) October 27, 2009: Labor and Employment - Substantial evidence supported determination that workers' compensation claimant did not establish causally related injury. Workers' Compensation Board's determination that claimant lacked credibility and did not establish causally related injury was supported by substantial evidence; employer's witnesses rebutted claimant's testimony that explosion caused dust cloud containing toxic particles to engulf school where claimant was employed as teacher, which explosion allegedly caused injuries to claimant leading to her resignation, fire department's incident report did not mention explosion, no testimony or affidavit from other school staff or students substantiated claimant's assertions, principal testified that he requested claimant's resignation because of poor performance, and although claimant presented evidence from treating physician and specialists diagnosing her as suffering from causally related reactive airway dysfunction syndrome based on claimant's assertion about exposure to toxic particles, employer's medical expert noted that claimant suffered from preexisting respiratory ailments and did not meet criteria needed to establish causally related respiratory illness. Green Tree School v. Unemployment Compensation Bd. of Review, (Pa.Cmwlth.) October 27, 2009: Labor and Employment - Director of education who quit upon elimination of behavior coordinator position was not entitled to unemployment benefits. A private school employee's claim that she resigned her position as the director of education upon the school's elimination of a behavior coordinator position due to safety concerns and school management's refusal to include her in the staffing decision did not support a finding that necessitous and compelling reasons existed for quitting her employment, and thus the employee's voluntarily leaving her employment precluded an award of unemployment compensation. The employee's safety claim was not supported by other employees of the school and the employee had no right to be involved in the staffing decision, particularly in light of her romantic relationship with the person in the affected position. Ruben A. v. El Paso Independent School Dist., (W.D.Tex.) October 27, 2009: Disabled Students - Parent did not unreasonably prolong IDEA administrative proceeding by refusing to accept school district's settlement offer. A parent did not protract an IDEA administrative due process proceeding against a school district, in which he alleged failure to provide his child a free appropriate public education (FAPE). The school district contended that a reduction in the parent's prevailing-party attorney fee award was warranted because the parent had refused to enter into settlement agreements that it put forward, thereby prolonging the proceeding. However, the parent had no duty to enter into a settlement that he found unsatisfactory. The proposed settlements did not acknowledge the school district's failure to evaluate the child, and required the parent to dismiss his complaint, or to waive his right to attorney fees or his right to a due process hearing. Boever v. Special School Dist. of St. Louis County, (Mo.App. E.D.) October 26, 2009: Torts - School district and employees had sovereign and official immunity from wrongful death claims after high needs student choked. Wrongful death claims that a public school student's parents asserted against the student's teacher and two of the student's aides were not based on the failure to perform a ministerial duty, and thus, were barred by official immunity, despite allegations that the teacher and the aides were liable for the student's death by choking in that they knew that the student suffered from severe functional limitations, which included the propensity to choke, but failed to properly supervise the student. The parents did not assert that a statute or regulation imposed a duty to give constant, individualized supervision. Additionally, the parents' claims against the school district were barred by sovereign immunity. Despite allegations that the school district created a "dangerous condition" or failed to make a known dangerous condition safe by leaving unattended food in same area as the student, the claims did not allege any defect of public property. This decision may not yet be released for publication. King ex rel. Harvey-Barrow v. Beaufort County Bd. of Educ., (N.C.App.) October 26, 2009: Student Discipline - Board of Education was not required to provide an alternative education program for suspended high school student. A Board of Education was not required to provide an alternative education program for a high school student who was suspended for the remainder of the school year. The student brought the action to challenge the suspension decision, claiming the absence of an alternative education program violated her right to a free public education. However, relying on In Re Jackson, the court held that the suspension did not violate the student's right to an education. The court reasoned that the disposition of students expelled or suspended long term was ultimately a decision involving the administration of the public schools, which was a decision best left to the Legislature. The dissent disagreed, arguing that In Re Jackson was no longer controlling authority. Hardy ex rel. Hardy v. Beaufort County Bd. of Educ., (N.C.App.) October 26, 2009: Student Discipline - Student, who was given long term suspension, did not state claim that county board of education violated student's constitutional right to a free public education. Under North Carolina law, a tenth grade student, who was given a long term suspension, did not state a claim that the county board of education and the superintendent violated the student's constitutional right to a free public education by failing to provide her with an alternative education program. Reasonable regulations punishable by suspension did not deny the right to an education, but rather denied the right to engage in the prohibited behavior. Wisconsin Alumni Research Foundation v. Intel Corp., (W.D.Wis.) October 26, 2009: Property and Contracts - Letter agreements between manufacturer and patentee did not provide manufacturer with express license in patent. Letter agreements between a semiconductor manufacturer and a university patentee, which concerned research on computer processor architecture, did not provide the manufacturer with an express license in a patent developed during the research period funded. The patent was aimed at reducing delays in computer processing when executing instructions out of order. Early on, the manufacturer had represented that its grants were made as unrestricted grants to the university. The university described the "deliverable" in the research proposal as the kinds of information that he would provide manufacturer. Moreover, the parties did not negotiate terms of intellectual property rights before the initial funding letter was sent out. Finally, when the patentee subsequently sought to offer manufacturer a license, manufacturer did not respond that it already had a license. Sonnier v. Crain, (E.D.La.) October 26, 2009: Civil Rights - University officials who enforced speech policy were entitled to qualified immunity. A state university's assistant vice president for student affairs, and a university police officer, did not violate clearly established First Amendment free speech rights of thee plaintiff non-student traveling evangelist by enforcing the university's policy on public speech, assembly, and demonstrations. Thus, they were entitled to qualified immunity from suit under 1983 in their personal capacity. It was clearly established that public universities had the right to promulgate content-neutral time, place, and manner restrictions on free speech that served a legitimate purpose of facilitating educational objectives. The university's speech policy explicitly stated that it was made pursuant to the First and Fourteenth Amendments to the United States Constitution, that it did not discriminate on the basis of content, and that it served to facilitate the academic programs and administrative processes of the university. Lee v. Scaldini, (Ohio App. 8 Dist.) October 26, 2009: Appeals - Due to sale of university assets pending appeal, appeal of motion granting sale was moot. Appeal of a trial court's grant of a motion allowing for a special master to sell the university's assets was moot. The board of trustee members who opposed the sale failed to obtain a stay of the sale pending the appeal. Therefore, the assets were sold while the appeal was pending, rendering it impossible for the appellate court, if it were to decide case in favor of the members, to grant them any effectual relief. Bonaparte v. Board of Supervisors of Louisiana State University, (La.App. 1 Cir.) October 25, 2009: Seniority and Tenure - Chancellor of community college was not entitled to a tenured position as professor after being fired as chancellor. The chancellor of a community college was not entitled to a tenured position as a professor after being fired as chancellor. This was the ruling of the Court of Appeal, despite the fact that his letter of appointment provided that "The Chancellor shall be offered tenure in his academic area." The Court noted that the college had been newly created and that one task entrusted to its new chancellor was the development of a tenure process, which he had not completed. If that process had been in place, said the Court, its decision might have been different. But the consequence of the tenure process being incomplete was that the implicit suspensive condition which would have entitled him to tenure in his academic field was never fulfilled, prior to the termination of his employment as chancellor. This decision may not yet be released for publication. Northern Kane Educational Corp. v. Cambridge Lakes Educ. Ass'n, IEA-NEA, (Ill.App. 4 Dist.) October 23, 2009: Labor and Employment - Charter school was exempt from the Educational Labor Relations Act. A provision of the Charter Schools Law exempting charter schools from "all other state laws" except for certain enumerated statutes relating to safety, administrative, and reporting requirements exempted charter schools from the Educational Labor Relations Act. Therefore, the Educational Labor Relations Board lacked jurisdiction over the charter school's governing body and could not certify a union that sought to represent certain of the charter school's employees. The Educational Labor Relations Act was not one of the statutes enumerated in the Charter School Law provision as being excepted from the blanket exemption. This decision may not yet be released for publication. DeFabio v. East Hampton Union Free School Dist., (E.D.N.Y.) October 23, 2009: Civil Rights - Denial of access to nonpublic fora to deny racist statement attributed to him did not violate student's free speech rights. The administration's decision to deny a New York high school student access to the school's non-public fora to engage in speech regarding a racially inflammatory statement attributed to him, or by the student on school grounds without assistance from the school, did not violate his First Amendment free speech rights. Following the death of a Hispanic student in a motorcycle accident, the student was alleged to have commented "one down, 40,000 to go." He subsequently received a number of threats and feared for his safety. Although the student and his mother made several requests that would constitute school-sponsored speech such as reading a statement proclaiming his innocence at a school assembly or over the school's public address system or having the school circulate a copy of the statement throughout the school to all students, they also alleged that, prior to any suspension, the student was prevented from returning to school and speaking to students without any assistance from the school. Smith County School Dist. v. Campbell, (Miss.App.) October 22, 2009: Labor and Employment - The School Board presented good reasons for not renewing teacher's part-time contract. The School Board presented good reasons for not renewing a teacher's part- time contract, after the principal and the superintendent recommended renewal of the teacher's contract. The Board felt that the students would be better served if the teacher's position was full time. This decision may not yet be released for publication. Perkins Local Dist. Bd. of Edn. v Wooster City School Dist. Bd. of Edn., (Ohio App. 6 Dist.) October 22, 2009: Jurisdiction - Juvenile Court had exclusive subject matter jurisdiction over declaratory judgment action brought by school board district. The Juvenile Court had exclusive subject matter jurisdiction over a declaratory judgment action brought by a school board of education to determine which school district was obligated to pay the costs of educating two students, under the statute in effect at the time a juvenile court issued a prior order determining where the students resided. The statute directed the juvenile court to make such a determination at the time it made any order relating to the child's residence. Neither could the juvenile court's jurisdiction over the issue be waived. Furthermore, a transfer of the school board's action to the juvenile court, rather than dismissal, was not warranted, since neither the plaintiff school board nor the defendant school boards had requested transfer. © 2009 West, a Thomson business Westlaw Integration Solutions  /  Westlaw.com