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

• Email This
• Print
• Comments
• Trackbacks

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.
 

• Email This
• Print
• Comments (2)
• Trackbacks

As discussed in an earlier report on this blog, the United States Supreme Court undertook review of a Ninth Circuit Court of Appeals decision in Christian Legal Society v. Martinez. On June 28, 2010, the Supreme Court issued its decision, affirming the Ninth Circuit’s ruling that public institution University of California at Hastings Law School lawfully denied recognition to the student group Christian Legal Society (“CLS”).

UC Hastings allows organizations to become Registered Student Organizations (“RSO”), which results in official school recognition, access to school funds and facilities, and the ability to communicate through law school communication channels. However, to obtain and maintain RSO status, these organizations must, under an extension of the school’s Nondiscrimination Policy, “allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [his or her] status or beliefs.” The U.S. Supreme Court would later characterize this rule as the “all-comers condition.”

In 2004, certain students sought RSO status for a UC Hastings branch of CLS, to be a school affiliate of the national organization. Based upon the bylaws of the national organization, the UC Hastings branch of CLS planned to exclude from its membership anyone who participates in “unrepentant homosexual conduct.”

CLS applied for recognition as a UC Hastings RSO, and UC Hastings rejected the application, declaring that CLS failed to comply with UC Hastings’ Nondiscrimination Policy because it barred students based on religion and sexual orientation. CLS requested an exemption from the Nondiscrimination Policy, but UC Hastings refused. While CLS would not be granted the privileges allowed to RSO’s, UC Hastings emphasized that CLS could continue to exist as a non-RSO student organization.

In October 2004, CLS filed suit against UC Hastings officers and administrators under 42 U.S.C. § 1983, alleging UC Hastings officials had violated CLS’ rights to free speech, association, and freedom of religion as established by the First Amendment and the Fourteenth Amendment. The U.S. District Court for the Northern District of California granted summary judgment in favor of UC Hastings, dismissing CLS’ claims. On appeal, the Ninth Circuit Court of Appeals affirmed in favor of UC Hastings. CLS then appealed to the U.S. Supreme Court.

In its 5-4 decision, written by Justice Ginsburg, the U.S. Supreme Court first struggled with whether to proceed under the lower level of scrutiny applied to regulations of speech in a limited public forum, or whether the heightened strict scrutiny approach often applied to restrictions of expressive association should apply. Finding that in this case the free speech and expressive association arose in “exactly the same context,” the Court found them to be “intertwined rights,” which should be evaluated under a single standard. Finding that the case fit “comfortably” within the limited public forum line of jurisprudence, the Court proceeded under the limited public forum paradigm.

The Court’s analysis thus hinged upon the rule that “the State may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, . . . nor may it discriminate against speech on the basis of . . . viewpoint.” Considering first whether UC Hastings’ “all-comers” rule was reasonable, the Court found UC Hastings had several reasonable bases for its rule. Such justifications included: (1) the rule ensured access for all students; (2) the rule allowed UC Hastings to enforce its Nondiscrimination Policy without digging into each proposed RSO’s specific motivations for exclusivity in violation of the rule; and (3) the rule encourages tolerance, cooperation, and learning. The Court found UC Hastings had a reasonable basis for enforcement of its “all-comers” rule for RSO’s.

Next, the Court considered whether UC Hastings had, by virtue of its “all-comers” rule, discriminated on the basis of viewpoint. Emphasizing that UC Hastings still allowed organizations not approved as RSO’s to continue to operate on campus, the Court found UC Hastings had not engaged in viewpoint discrimination. In fact, the Court declared: “An all-comers condition on access. . . is textbook viewpoint neutral.” UC Hastings was merely “dangling the carrot of the subsidy, not wielding the stick of prohibition.”

The Supreme Court affirmed the Ninth Circuit’s ruling in favor of UC Hastings, but remanded to the Ninth Circuit for further consideration of CLS’ claim that UC Hastings’ “all-comers” policy was mere pretext for viewpoint discrimination.
 

• Email This
• Print
• Comments
• Trackbacks

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.
 

• Email This
• Print
• Comments
• Trackbacks

On April 21, 2009, the U.S. Supreme Court heard oral arguments in a case involving the controversial strip search of 8th grader Savana Redding, Redding v. Safford United Sch. Dist. No. 1.

In August 2003, public school officials observed disorderly behavior at a school dance among a group of students, including Savana Redding. Officials believed they smelled alcohol. Nearly two months later, a student informed officials he had received pills from Redding and her friend, Marisa. School officials searched Marisa and found pills, which Marisa attributed to Redding. They also found Redding’s organizer, which Redding insisted Marisa had borrowed several days earlier, in Marisa’s vicinity. The organizer also contained pills.

School officials then retrieved Redding. Redding denied ever possessing or distributing drugs and invited officials to search her backpack, which they did, finding nothing. Nevertheless, school officials subjected Redding to a thorough strip search, requiring her to remove her jacket, shoes, socks, pants, and shirt, then pull out her bra to one side and shake it, while exposing herself. Finally, they required Redding to pull her underwear out and expose her pelvic area.

Redding filed suit, alleging violation of 42 U.S.C. § 1983 by virtue of the public school’s violation of her Fourth Amendment rights. After the trial court granted summary judgment in favor of the school district, the Ninth Circuit affirmed, finding the search reasonable. However, the Ninth Circuit subsequently reheard the case, vacated its earlier decision, and reversed the trial court’s dismissal, finding the search unreasonable. The school district appealed the decision to the U.S. Supreme Court.

The U.S. Supreme Court will be asked to decide whether the search of Ms. Redding was reasonable. Under the Court’s precedent, New Jersey v. TLO, the reasonableness of a search by public school officials on school premises during school hours is determined by considering whether the search was: (1) justified at its inception; and (2) reasonably related in scope to the circumstances which justified the search. Williams Kastner will update this blog post on the Redding case once the Court hands down its decision.

Redding v. Safford Unified Sch. Dist. No. 1, 531 F.3d 1071 (9th Cir. 2008)