Northwest Education Law Blog : Northwest Education Lawyer & Attorney : Williams Kastner Law Firm : Tacoma, Seattle, Portland

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In September 2009, teacher Michael Moulton was convicted on four counts of Assault against his own students in the Morton School District and served 16 days in a county jail. But Moulton’s termination has been overturned, and Moulton is free to return to the classroom. According to the Seattle Times, Moulton was scheduled to return to work on Monday, August 30, 2010, but he has called in sick this week as parents continue to protest his return.

The story behind Moulton reaches back to 1997, when he was first reprimanded for inappropriate interactions with female students. Over the years, Moulton was cited for rubbing shoulders, backs and arms, hugging female students from behind, grabbing a girl’s side, petting a girl’s shoulder, pulling a girl’s hair, and slapping a boy on the back of the head. In June 2008, one student filed a complaint for damages against the district and Moulton.

In the fall of 2008, Moulton was placed on administrative leave, without pay. A district investigation determined that while Moulton’s conduct was not sexual in nature or intent, it violated standards of conduct, and further that Moulton had falsely denied the fact that several students had asked him to stop. In November 2008, the Morton Police Department started an investigation, which lead to a charge of 8 counts of Assault. Moulton pled guilty to 4 counts and served 16 days in jail.

In March 2009, Morton School District imposed a 12-day suspension on Moulton as punishment. In October 2009, the Morton School District issued a letter to Moulton declaring that he had been terminated for probable cause. However, after Moulton challenged his termination, an administrative hearing officer determined that Morton School District was already aware of all offending conduct at the time of the March 2009 suspension, and therefore Morton’s termination decision improperly punished Moulton twice for the same offenses. On that basis, the hearing officer overturned Moulton’s termination and allowed him to return to his Morton classroom.
 

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On August 5, 2010, the Oregon Supreme Court ruled that a teacher who resigned after showing his students a movie clip that contained profanity was entitled to unemployment benefits. Robert McDowell, a first year language arts and drama teacher in Oregon’s Klamath County School District, played a 10 minute clip from the movie “Glengarry Glen Ross” to his senior English class as part of a lesson about language use and misuse. McDowell was placed on administrative leave and was told that termination would be recommended to the school board because he had not obtained approval before showing the profanity-containing clip to his class as required by school district policy. McDowell consulted with a union attorney who told him that there was absolutely no chance that the school board would overrule the termination recommendation, and then resigned and sought unemployment benefits. Benefits were denied, first on the grounds that McDowell was discharged for misconduct, and later on the grounds that he voluntarily left work without good cause. The Oregon Supreme Court reversed, holding that McDowell had good cause to voluntary quit and was, therefore, entitled to unemployment benefits.

As a preliminary matter, the court noted that if McDowell had been fired, he would have been entitled to unemployment benefits because the school district did not tell him about the pre-approval requirement for profanity-containing movies. Thus, showing the movie did not constitute “misconduct” which made McDowell ineligible for benefits.

On the bigger issue of whether McDowell had good cause to voluntarily quit, the court held that he did because termination would have been a “kiss of death” on his teaching career. Since termination would have plagued him in obtaining future employment, McDowell had no reasonable alternative but to quit and a reasonable person in his situation would have voluntarily quit. Accordingly, McDowell had good cause to quit and was entitled to unemployment benefits.
 

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As unionizing efforts become a part of the education industry in the Pacific Northwest, schools should take affirmative steps to prepare for potential union activity in their workforce. Who is eligible to vote for a union? Who isn't? Can schools stop organizing visits on work premises by outside parties? What can employers lawfully do in response to organizing efforts? If the union wins, what happens next? Join Williams Kastner attorneys Judd Lees and Todd Sorensen for a webinar designed to provide you with an overview of labor law, including a thorough discussion of what schools can and cannot do before, during and after their employees endeavor to organize under a union.

Date:
September 14, 2010

Time:
Noon - 1:00 p.m. PST

RSVP:
To RSVP, please e-mail seminars@williamskastner.com. An online meeting confirmation complete with instructions on how to join the webinar will be sent to all registrants.

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Parents Spring and Charles Towry have filed suit, on behalf of themselves and their daughter, against the Kootenai Elementary School, Lake Pend Oreille School District No. 84, and Bonner County Sheriff’s Department, alleging nine separate causes of action arising out of their 8 year-old daughter’s arrest in January 2009.

According to the complaint, the Towry child was diagnosed with Autistic Spectrum Disorder in August 2008. In December 2008, officials at Kootenai Elementary in Idaho held a meeting and instituted an Individual Education Plan (“IEP”) and Behavior Intervention Plan (“BIP”), entirely without the Towry’s knowledge or participation. The plans authorized police intervention to deal with the child, with no requirement of prior notice to the Towrys.

The Towrys allege that on January 9, 2009, the 8-year-old Towry child was arrested at the behest of her teacher, Louise Zumuda, and Kootenai Elementary principal, Betsy Walker, without notice to her parents. According to the complaint, Bonner County Sheriff’s Department Deputies Justin Collins and Kurt Lehman handcuffed the 8-year-old and took her to the Bonner County Juvenile Detention Center, where she was “patted down.”

The Towrys seek relief on nine separate causes of action, including: negligence; intentional infliction of emotional distress; negligent hiring/supervision/retention; breach of contract; disability discrimination under the Americans with Disabilities Act (“ADA”), the Individuals with Disabilities Education Act (“IDEA”), and Idaho statutory law; and violation of the Fourth and Fourteenth Amendments.

While the complaint maintains the anonymity of the child at the center of the dispute, some reports claim to identify the child.
 

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A diabetic school district employee transferred from Director of Pre-K and Student Services to Dean of Students at a district middle school lacks a claim under the Americans with Disabilities Act (“ADA”), a federal district court ruled on July 2, 2010.

In Williams v. Brunswick County Board of Education, plaintiff Lorne Williams alleged that upon requesting 6-month medical leave due to “diabetic levels” in 2007, the Board transferred her to the position of Dean of Students at Shallotte Middle School, violating the ADA. To set forth a claim for ADA discrimination, Williams had to demonstrate, among other things, that she was “disabled” within the meaning of the ADA, and that the Board took an “adverse employment action” against her because of that disability. On the Board’s motion for summary judgment, the U.S. District Court for the Eastern District of North Carolina rejected Williams’ ADA discrimination claim for two primary reasons.

First, applying the pre-January 1, 2009 definition of “disabled,” the court found Williams’ diabetes did not give rise to protected status under the ADA. Notably, under the new definition of “disability” established by the ADA Amendments Acts of 2008, Williams may have qualified as a disabled individual. For more information, see our prior blogpost on the ADA Amendments Act of 2008.

Second, the court rejected Williams’ contention that the transfer from Director of Pre-K and Student Services to Dean of Students at Shallotte Middle School constituted an “adverse employment action” for purposes of her discrimination claim. The court determined that because the transfer came with no change in pay, benefits, or seniority, the move could not rise to the level of an “adverse employment action.” The court expressly rejected Williams’ argument that the broader definition of “adverse employment action” established in the U.S. Supreme Court decision Burlington Northern v. White applied. In Burlington, the Court held that in Title VII retaliation claims, an employment action is “adverse” if it “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” However, the district court in Williams v. Brunswick County Board of Education found that broader definition to be limited to the context of retaliation claims, and therefore inapplicable to Williams’ ADA discrimination claim.

In a more cursory fashion, the court also rejected Williams’ ADA retaliation claim, finding no evidence of adverse action even under the more lenient Burlington Northern v. White standard, largely because the Board actually granted Williams her requested 6-month medical leave.
 

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A report by Pro Publica indicates that an investment firm representative solicited signatures on a letter sent to the U.S. Department of Education, under the signature of homeless shelter agencies, alleging that for-profit colleges had recruited homeless youths as prospective students.

According to Pro Publica’s report, an investment firm paid Johnette McConnell Early to solicit signatures from homeless centers, without disclosing her affiliation with the investment firm. Now, some homeless shelter representatives who signed the letter feel duped, indicating they may never have signed the letter if Ms. Early’s affiliation had been disclosed.

In light of this news, there is heightened concern that some involved in the effort to regulate for-profit schools are acting out of self-interest. Such concerns came to light last month following testimony at a hearing before the Senate Committee on Health, Education, Labor & Pensions. On June 24, 2010 at the first of a series of Committee hearings on for-profit education reform, hedge fund manager Steven Eisman offered testimony against the for-profit industry, predicting “the industry’s default rates are about to explode.” Many have questioned the propriety of allowing testimony from Mr. Eisman on the subject, as Mr. Eisman has no relevant experience, and is instead best known for turning a profit by betting against mortgage securities shortly before their crash. The Career Colleges Association attacked Eisman’s self-interested testimony as follows:

During a May 26, 2010 speech at a hedge fund conference in Manhattan, Eisman promoted increased federal regulation of higher education as a means to assure that stock prices of higher education companies would fall by as much as 60 percent.

Get that? Steven Eisman wants the regulation of higher education to get rich -- not because it will be good for students or the schools. And now this hedge fund manager is leveraging a U.S. Senate hearing to take more short-selling profits.

Another organization, Citizens for Responsibility and Ethics in Washington also criticized Eisman’s testimony, and sent a letter to Chairman Tom Harkin, declaring:

To our knowledge, Mr. Eisman has no expertise in education policy; he holds no degrees, has no experience, and no background on the education policies at issue. Mr. Eisman’s only experience is that he works for a hedge fund that is betting millions of dollars on stock prices falling in the for-profit education industry. His financial conflicts of interest could not be more blatant, yet they were not disclosed in advance of his testimony. Even more troubling is Mr. Eisman’s use of the congressional hearing and the Committee as a vehicle to advance his own economic interests by dragging down stock prices of publicly traded companies.

Today’s Pro Publica report fuels suspicions that, while disinterested critics and reformers of the for-profit industry do exist, self-interested parties are playing a significant role in pushing for heightened regulation of the for-profit education industry.
 

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KLEWTV of Lewiston, Idaho, reports that the University of Idaho has reached a settlement with 250 retired employees, who had filed suit alleging the University made improper changes to their medical and life insurance benefits after they agreed to early retirement programs between 1998-2002. According to the report by KLEWTV, the settlement guarantees that the retired employees’ medical insurance premiums will never increase more than 10% over the prior calendar year, and their life insurance will not fall beneath the current benefit level. KLEWTV offers video of the court’s approval of the settlement.

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On July 8, 2010, two former top administrators at Washburn University filed suit against the University, its Board of Regents, and its president, Dr. Jerry B. Farley. In their complaint, former Vice President for Administration Wanda Hill and former Vice President for Academic Affairs Robin Bowen allege that Farley terminated their employment without cause, without due process, and in retaliation for whistleblowing.

According to Hill and Bowen’s complaint, between 2006 and 2010 a rift developed between Farley and the Board, leaving Hill and Bowen stuck in the middle. Hill and Bowen allege that under Farley’s direction the University skewed enrollment and credit hours by, among other means, counting “phantom students” in order to artificially inflate enrollment numbers and allow for wrongful receipt of federal financial aid. In addition, they allege, at Farley’s behest the University provided more scholarships to students than had been authorized in the University budget. University funds were allegedly used to cover the scholarship shortfall.

Hill and Bowen allege that the Board suspected Farley was covering up such practices, and as a result the Board approached Hill and Bowen seeking the truth about Farley’s practices. Hill and Bowen spoke openly with the Board. In early 2010, as members of the Board allegedly began clamoring for Farley’s removal, Farley terminated Hill and Bowen.

Hill and Bowen assert three claims: (1) Deprivation of Due Process; (2) Breach of Contract; and (3) Retaliation. As to the first two claims, Hill and Bowen allege that termination of their employment without cause violated their employment contracts and, as Washburn University is a municipal subdivision of Kansas, violated their constitutional right to due process under 42 U.S.C. § 1983 and the Fifth and Fourteenth Amendments. In support of their retaliation claim, Hill and Bowen claim their reports to the Board of Regents on Farley’s activities constituted protected action, and that Farley terminated them for such whistleblowing. For more information, consult The Topeka Capital-Journal.
 

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The Seattle Times reports that a University of Washington police officer attended meetings of student organizations undercover, posing as a student. According to the report, Officer Tanesha Van Leuven attended a Student Workers Coalition meeting and identified herself as "Tani," concealing her identity so that she could conduct surveillance on the organization, which had been planning a demonstration in support of UW custodians. In the wake of the discovery of Officer Van Leuven's true identity, theAmerican Civil Liberties Union is calling for anti-surveillance legislation. The Times also reports that UW officials have expressed their disapproval of Officer Van Leuven's actions. A Komo News report includes additional information on this story, including a photograph of the officer at issue.