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

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The Ninth Circuit Court of Appeals held on January 4, 2010, that a charter school’s alleged conduct did not satisfy the “state actor” requirement for purposes of a 42 U.S.C. §1983 claim in Caviness v. Horizon Cmty. Learning Ctr., 590 F.3d 806 (9th Cir. 2010).

The lawsuit revolved around plaintiff Michael Caviness, who had served as a teacher and track coach at Horizon Community Learning Center in Phoenix, Arizona for six years. A female student enamored of Caviness, and angered by his relationship with his adult girlfriend, filed a grievance falsely alleging Caviness maintained an inappropriate relationship with the student. Horizon placed Caviness on paid administrative leave pending investigation, and during that leave prohibited Caviness from attending track meets. While the investigation largely cleared Caviness, the school deemed Caviness’s telephone calls with the student inappropriate and, as a result, chose not to renew Caviness’s contract. When Caviness sought new employment at another school, Horizon refused to provide affirmative references.

Caviness filed suit under 42 U.S.C. Section 1983, alleging Horizon, acting under color of state law, deprived him of a protected interest in finding employment by making false statements to potential employers, and further deprived him of First Amendment rights by prohibiting his attendance at track meets during the paid administrative leave. Section 1983 claims require a state actor. For private defendants, that requirement may be met where there is such a close nexus between the state and the challenged action that the private entity’s action must be treated as an act of the state itself.

The trial court dismissed Caviness’s claims for failure to satisfy the state actor requirement, and Caviness appealed. The Ninth Circuit Court of Appeals affirmed dismissal, holding Caviness failed to demonstrate sufficient nexus between the state and the alleged actions by Horizon. Despite the fact that Arizona law deems charter schools public schools, and despite the fact that several Arizona statutes regulated charter schools’ personnel policies, Horizon’s actions did not constitute state action under Section 1983.
 

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Students joined in protest at public colleges and universities across the nation on March 4, 2010, primarily in an effort to call attention to state education cuts and the rising cost of tuition.

At the University of Washington, the Seattle Times reports, hundreds of students marched on the Quad, while at Evergreen State College near Olympia, Washington, students took part in a mock "funeral" for education, complete with the delivery of a coffin to the state capitol. Video has emerged of students interrupting a legislative session by singing a creative version of "Amazing Grace," before being peacefully ushered away. The Oregonian reports that students at Portland State University assembled a rally of approximately 200 students.

At the University of Wisconsin-Milwaukee, police officers used pepper spray in an effort to break up a crowd of students storming the chancellor's office, resulting in 15 arrests, according to the Milwaukee Journal Sentinel. Video shows students throwing snowballs at Chapman Hall, and officers arresting a student.

In California, protesters literally took to the streets, as the Los Angeles Times reports that over 100 protestors blocked freeway traffic before being arrested. One eyewitness caught the event on video. Students at the University of California Irvine also joined in protest.

While nationwide protests were largely targeted at higher education, some California middle schools and high schools joined the cause, with over 500 students at the Los Angeles Unified School District participating in walkouts. The L.A. Unified School District—the nation’s second largest district—made headlines earlier this week when it announced it would issue approximately 5,196 layoff notices to faculty and staff. According to the Los Angeles Daily News, the move “would virtually eliminate school nurses and librarians, increase class sizes in fourth through eighth grade to a potential high of 44 students in middle school, and boost counselor loads to 1,000 students each.”

All major news networks, including CBS, NBC, and ABC reported on the March 4 protests.
 

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On February 19, 2010, the Fourth Circuit Court of Appeals affirmed the dismissal of discrimination and retaliation claims filed by a Morgan State University professor.

By way of background, before filing suit in federal court on a claim of discrimination under Title VII of the Civil Rights Act of 1964, a claimant generally must “exhaust her administrative remedies.” To do so, she must file a complaint with the Equal Employment Opportunity Commission (“EEOC”) within 180 days of the alleged discriminatory act. In the alternative, that individual may file a complaint with certain state or local administrative agencies within 300 days of the alleged discriminatory act.

Rose Ure Mezu, an African American woman of Nigerian origin and Igbo ethnicity, served as a an associate professor at Morgan State University. In 2004 and 2005, Mezu applied for promotion to full professor, but she was denied. Morgan State’s denial of Mezu’s application came in an April 6, 2006 letter from Morgan State University President, Dr. Earl Richardson.

In the same letter, Dr. Richardson reminded Mezu of her right to an internal appeal. Mezu appealed, and was again denied in September 2006. Under Morgan State policy, Mezu had the opportunity for further internal appeal, but apparently did not further pursue the matter internally.

Mezu filed a charge with a local administrative agency, alleging that Morgan State had denied her tenure based on race and national origin in violation of Title VII of the Civil Rights Act of 1964. She filed her administrative charge on March 25, 2007—critically, more than 300 days after Dr. Richardson’s April 6, 2006 correspondence denying Mezu’s application for tenure.

After the EEOC issued Mezu a right to sue letter, Mezu filed suit in federal court. On Morgan State’s motion, the court dismissed Mezu’s Title VII claim as time barred, based on Mezu’s failure to file a complaint with the applicable local agency within 300 days of the alleged discriminatory act—Dr. Richardson’s April 6, 2006 letter of denial.

On appeal, the Fourth Circuit Court of Appeals affirmed because the discrete act forming the basis for Mezu’s claim fell outside the 300-day window preceding her March 25, 2007 complaint. The Fourth Circuit rejected arguments that the continuing internal appeals process at Morgan State affected the limitations period: “The time the initial employment decision was made and communicated triggered the commencement of the limitations period despite the pendency of the internal appeal and the possibility of a reversal of the initial decision.” The court also rejected Mezu’s retaliation claim, raised for the first time in federal court, because Mezu could not “attach her retaliation claim” to any claims properly before the court.
 

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On February 26, 2010, President Obama renewed the White House’s Initiative on Historically Black Colleges and Universities (“HBCUs”) by issuance of an executive order. President Obama introduced the executive order during a speech in the East Room of the White House.
He credited the initiative, which originated with President Carter and has been renewed by each administration since, with the creation of “cradles of opportunity” for diverse students.

The purpose of the order is to “increase the capacity of HBCUs to provide the highest-quality education to a greater number of students” and to improve HBCUs’ capacity to serve five core tasks:

• strengthening the capacity of HBCUs to participate in Federal programs;

• fostering enduring private-sector initiatives and public-private partnerships while promoting specific areas and centers of academic research and programmatic excellence throughout all HBCUs;

• improving the availability, dissemination, and quality of information concerning HBCUs to inform public policy and practice;

• sharing administrative and programmatic practices within the HBCU community for the benefit of all; and

• exploring new ways of improving the relationship between the Federal Government and HBCUs.

In addition, the executive order establishes the President’s Board of Advisors on HBCUs, to be comprised of up to 25 presidential appointees to “advise the President and the Secretary on all matters pertaining to strengthening the educational capacity of HBCUs.”

According to a White House press release, there are 105 HBCUs in the United States serving some 300,000 students. Notably, President Obama’s FY 2011 budget also includes $98 million in new funds to HBCUs, $20.5 million to the HBCU Capital Financing program, and $103 million dedicated to a science and technology workforce program at the National Science Foundation, targeting undergraduates at HBCUs as well as historically Tribal and Hispanic colleges and universities.

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On Wednesday, March 3, 2010 at 12:00 p.m. (PST), James Thomas of the Williams Kastner Education Law Practice Team will present a free webinar entitled: “Changes in Education Loan Regulations: The New TILA/Regulation Z and You.” The webinar will address the Federal Reserve Board’s new rules, in force as of February 2010. Attendees will obtain a firm understanding of how these new rules on Regulation Z of the Truth in Lending Act may affect educational institutions and their students.

To register now for this free seminar, 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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This week the House will debate the “Preventing Harmful Restraint and Seclusion in Schools Act,” H.R. 4247. The Act is designed to prevent physical and psychological trauma which may result from the use of physical restraint and seclusion as a means to discipline students. According to the House Committee on Education and Labor, “a recent investigation by the U.S. Government Accountability Office found hundreds of allegations that children have been abused, and some even died, as a result of misuses of restraint and seclusion in public and private schools, often at the hands of untrained staff.”

The Act would apply to public and private schools which receive federal funding, and would impose an absolute prohibition against the use of mechanical and chemical restraints, as well as physical restraints which restrict breathing. Use of other physical restraints, as well as use of seclusion, would also be prohibited, except where the student’s behavior poses a risk to students or faculty. Where such restraints or seclusion could be used on students posing such a risk, these methods would only be available if no less restrictive means of discipline would protect students and faculty, and further would require appropriate monitoring.

The Act would also prohibit the inclusion of physical restraint or seclusion into a child’s Individual Education Program (“IEP”). For further consideration of how the Act might affect special education law in particular, consult the Special Education Law Blog.

The Act contemplates further regulations by the Department of Education, and calls upon state and local agencies, as well as schools, to establish certain training and policies designed to ensure implementation of the Act and to provide for reporting to parents promptly after use of any approved restraint or seclusion.

The Act has received widespread support from a variety of organizations, including the National School Boards Association. However, some have expressed concern that the Act encroaches upon areas of education law traditionally handled at the state and local level.
 

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U.S. universities and families with students studying abroad in Chile were disconnected from their students following a devastating 8.8 magnitude earthquake, which leveled buildings and highways, killing over 700 people on February 27. The earthquake is believed to be one of the most powerful earthquakes in the world in the last century. Parents and university officials are now setting about the difficult task of securing and making contact with students in Chile, a task made difficult with Chile left in what its president has declared as a "state of catastrophe." Among the universities affected, the University of Colorado (Boulder), Syracuse University, Oklahoma University , University of Wisconsin (Madison), University of South Carolina, Elon University, and University of Tennessee, have each reported on their efforts to secure their students, as has the International Studies Abroad organization. According to Education Abroad Director Jack Hobson at Oklahoma University, “[c]ommunication infrastructure in Chile has been overwhelmed with people checking in on loved ones." On the other side of the spectrum, Chilean students studying in U.S. Schools, such as St. Cloud State University, have also had difficulty getting in touch with their families in Chile.

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The Oregon State Legislature took one large step toward ending Oregon’s longtime ban on religious dress by public school teachers this week when it passed HB 3686. Current Oregon law prohibits public school teachers from wearing any religious dress while engaged in the performance of duties as a school teacher. If signed into law, HB 3686 would repeal that ban.
According to reports, Oregon Governor Ted Kulongoski has not expressed concerns about the bill as he normally would if he believed it were flawed, but he has not decided whether he will sign the bill into law.

The Oregonian reports that Oregon is one of only three states that presently ban religious dress by public school teachers–a ban which apparently started in 1923 to keep Catholic nuns out of public schools. While there have been no complaints about a teacher’s dress in decades, lawmakers predict litigation will ensue if the ban on religious dress is lifted.

The ban on religious dress by teachers is codified at ORS 342.650.
 

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On February 24, 2010, President Obama nominated Goodwin Liu to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit serves as the federal appellate court for federal court litigation in Washington, Oregon, Alaska, California, Idaho, Montana, Nevada, Arizona, and Hawaii.

Gordon Liu is currently an associate dean and law professor at the University of California at Berkeley. Professor Liu’s resume includes a clerkship for U.S. Supreme Court Justice Ruth Bader Ginsburg and another clerkship with Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit.

In addition, Professor Liu previously served as a special assistant to the deputy secretary of the U.S. Department of Education and a senior program officer for higher education at the Corporation for National Service. His scholarship has earned him a multitude of accolades, including the Education Law Association's Steven S. Goldberg Award for Distinguished Scholarship in Education Law in 2007. Professor Liu served on the education policy and agency review teams during the Obama-Biden Presidential Transition.

Professor Liu’s background in education law and policy would make him a pivotal figure on the Ninth Circuit Court of Appeals, and could have a profound impact on education law jurisprudence for years to come. The Washington Post reports that Professor Liu is a controversial figure to some, by virtue of his criticism of “conservative legal theories” and his opposition to the appointment of Supreme Court Justice Samuel A. Alito’s nomination.

Also on February 24, President Obama nominated the Honorable Robert N. Chatigny to the Second Circuit Court of Appeals.