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

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On March 2, 2010, the Ninth Circuit Court of Appeals affirmed a Hawaiian district court decision denying the request of applicants to the Kamehameha Schools to proceed anonymously in a lawsuit challenging the school’s admissions policy, and further affirmed the district court’s dismissal of their claims for failure to identify themselves.   

The plaintiffs were prospective students, applicants to the Kamehameha Schools, the largest independent school system in the United States, comprised of nearly 7,000 students.  Princess Bernice Pauahi, the last descendant of the Hawaiian monarchy, established the school system in 1884, and since that time the school has stood as a bastion of Hawaiian culture.  The Kamehameha Schools’ admissions policy explicitly provides that all qualified applicants with Hawaiian blood must be admitted to the school before any non-native Hawaiian applicants.

When plaintiffs filed suit against Kamehameha Schools claiming the admissions policy constitutes unlawful discrimination, they requested permission to proceed anonymously.  Plaintiffs based their request for anonymity on threats made against them on the internet, past threats of violence against others in similar lawsuits, and specific incidences of native Hawaiians committing violent crimes with racial overtones against non-natives. The district court denied plaintiffs’ request for anonymity, and then dismissed the case after plaintiffs failed to disclose their identities.

The Ninth Circuit affirmed, holding that that district court did not abuse its discretion in denying the request for anonymity and dismissing the case.  In reaching its conclusion, the appellate court considered the five factors that the district court balanced in determining whether to allow plaintiffs to proceed anonymously over Kamehameha’s objection: (1) the severity of the threatened harm; (2) the reasonableness of plaintiffs’ fears; (3) plaintiffs’ vulnerability to such retaliation; (4) prejudice to Kamehameha; and (5) the public interest. 

According to the Ninth Circuit, the district court did not abuse its discretion in finding plaintiffs’ fear of harm was unreasonable, in part because “many times people say things anonymously on the internet that they would never say in another context and have no intention of carrying out.”  In light of the strong general presumption that parties should conduct litigation in their own names, based in part on the public’s right to open courts, the district court did not abuse its discretion in finding that the public interest outweighed plaintiffs’ interest in proceeding anonymously.

However, it should be noted that the Ninth Circuit indicated that had the district court reached the opposite result, the Ninth Circuit would likely have affirmed that opposite result as well, finding no abuse of discretion: “As an appellate court, we are constrained by the applicable standard of review.  Had the district court found that anonymity was appropriate, we likely would have concluded that the district court did not abuse its discretion.”

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On March 9, 2010, the Sixth Circuit Court of Appeals held that a former teacher at a religious school was not a “ministerial employee” for purposes of the Americans with Disabilities Act of 1990. Thus, the court held that the EEOC and the teacher could pursue claims for disability discrimination and retaliation against the employer under the ADA and the Persons with Disabilities Civil Rights Act, a Michigan state law that is substantively similar to the ADA.

As a starting point, the ADA prohibits an employer with fifteen or more employees from discriminating against a qualified individual with a disability on the basis of that disability with respect to conditions of employment. The ADA also contains an anti-retaliation provision, which prohibits an employer from discriminating against an individual because that individual opposed an act or practice made unlawful by the ADA or asserted a claim under the ADA.

However, the ADA’s coverage is not absolute, and there are some gaps in the protection it affords. One such gap in protection is the “ministerial exception,” which allows religious entities to give preference in employment to individuals of a particular religion and to require all employees to conform to the religious tenants of the organization. Thus, an individual’s discrimination or retaliation claim will be barred under the ministerial exception if (1) the employer is a religious institution, and (2) the employee is a ministerial employee.

In this case, Cheryl Perich was a “called teacher” at Hosanna-Tabor Evangelical Lutheran Church and School (“Hosanna-Tabor”). Called teachers were one of two types of teachers employed at the school, the other type being contract teachers. Called teachers differed from contract teachers in that called teachers had completed certain classes in the Christian faith, were admitted to the teaching ministry, and were hired on an open-ended basis rather than on a one-year renewable term. Putting the classification aside, Perich’s duties as a called teacher were identical to the duties she had previously performed as a contract teacher at the school.

The parties did not dispute that Hosanna-Tabor was a “religious institution,” so the key issue on appeal was whether Perich was a “ministerial employee” for purposes of the ADA. On appeal, the Sixth Circuit reversed the district court and held that Perich was not a ministerial employee.

In reaching its decision, the Sixth Circuit noted that whether an employee is ministerial is determined by looking at the employee’s primary duties.  Here, the court found that Perich’s primary duties were not religious in nature–she spent only 45 minutes of the seven hour school day devoted to religion. She taught secular subjects and rarely introduced religion into secular discussions, and her duties as a called teacher were identical to those she had performed as a contract teacher. Thus, the court held that excluding Perich from coverage under the ADA would be both “illogical and contrary to the intention behind the exception.”

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The Detroit Free Press reports that a federal jury awarded damages of $800,000 to a student who suffered peer-on-peer harassment at Hudson Area Schools. Further investigation unveiled the plaintiff's complaint, as well as the jury verdict form, filed March 3, 2010.

The plaintiff, a child of David and Dena Patterson identified as “DP,” started to experience bullying as a sixth grader. During sixth and seventh grade, students routinely called DP names such as “queer,” “faggot,” “pig” and “Mr. Clean.” DP estimated he was called such names on over 200 occasions in seventh grade. Students also pushed DP into lockers in the hallway. As DP continued through the school system, he continued to endure attacks of increasing intensity. Students broke into DP’s locker and urinated on his clothing, threw his shoes in the toilet, and mocked DP in class.

The Hudson Area Schools responded to these attacks largely by verbal warnings, which worked to some extent, ending further misconduct by the punished students. However, despite such success, other students were always there to pick up the harassment in place of the previously-reprimanded students. As a result, DP endured systematic harassment from his peers from sixth through ninth grade.

Finally, at the end of DP’s 9th grade year, the situation hit its breaking point. Following a Friday night JV baseball practice, DP’s teammates blocked him into a corner in the locker room while another teammate stripped naked, jumped on DP, and rubbed his genitalia in DP’s face. The teammate was expelled for the few days left in the school year, but just a week later was permitted to attend a school sports banquet.

DP’s parents filed suit on his behalf, alleging a variety of state and federal law claims, including violation of Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681. While Title IX is well known for its role in ensuring gender equality in athletics, its mandate is not so limited. Title IX provides that no person shall be, “on the basis of sex. . . subjected to discrimination under any education program receiving Federal financial assistance.” Under Title IX jurisprudence, educational institutions receiving federal funding may be held liable for peer-on-peer sexual harassment where:

(1) the sexual harassment was so severe, pervasive, and objectively offensive that it effectively barred the student’s access to an educational opportunity or benefit;
(2) the institution had actual knowledge of the sexual harassment; and
(3) the funding recipient acted with deliberate indifference to known acts of harassment.

Initially, the trial court dismissed DP’s Title IX claim for failure to satisfy the third element: deliberate indifference. However, in January 2009, the Sixth Circuit Court of Appeals reversed, remanding the case back to the district court for trial.

In the order reinstating DP’s Title IX claim, the Sixth Circuit emphasized that “even though a school district takes some action in response to known harassment, if further harassment continues, a jury is not precluded by law from finding that the school district’s response is clearly unreasonable.” The Sixth Circuit rejected the school’s argument that its reprimands to individual students were effective as to those perpetrators. “Hudson’s success with individual students did not prevent the overall and continuing harassment of DP, a fact of which Hudson was fully aware, and thus Hudson’s isolated success with individual perpetrators cannot shield Hudson from liability as a matter of law.”

It was the Sixth Circuit’s reversal last year which sent DP’s lawsuit back on course for trial, setting the stage for this week’s determination by a Michigan jury that the Hudson Area Schools violated Title IX, and awarding DP $800,000 in damages. An appeal may follow.

As we await further proceedings in this matter, schools should heed the warning from the Sixth Circuit in the prior appeal: where a school has knowledge that its methods for dealing with peer-on-peer harassment are not effective in curtailing the overall harassment, they may not simply continue to employ those methods, but must seek out a new solution to end the harassment.
 

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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.