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

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In a controversial decision, a Texas federal district court recently rejected a religious institution’s statutory and constitutional claims arising from the denial of certification for a Master of Science degree. The Institute for Creation Research Graduate School (“ICRGS”) applied to the Texas Higher Education Coordinating Board for a certificate of authority enabling ICRGS to offer a Master of Science degree with a major in Science Education from “a Biblical scientific creationist point of view.” The Board rejected the application after an assigned panel determined, in its view, that “much of the course content was outside the realm of science and lacked potential to help students understand the nature of science and the history and nature of the natural world.”

ICRGS filed suit against members of the Board under 42 U.S.C. § 1983, alleging they had infringed upon ICRGS’ rights to free speech, free exercise, equal protection, and due process under the First and Fourteenth Amendments. ICRGS also filed claims against the Board members and the Board itself for violation of the Texas Constitution, the Texas Religious Freedom Restoration Act, and Chapter 106 of the Texas Civil Practices and Remedies Code.

On the parties’ cross-motions for summary judgment, the U.S. District Court for the Western District of Texas dismissed ICRGS’ claims. In a lengthy, exhaustive analysis, which can only be partially summarized here, the court recognized the State’s legitimate interest in preventing “deception of the public resulting from the conferring and use of the fraudulent or substandard college and university degrees,” and protecting “legitimate institutions” from the “watering-down of their degrees.” The Board’s policies served those legitimate interests in this case.

The court rejected ICRGS claim of “invidious viewpoint discrimination,” finding no evidence of discriminatory animus, and further finding that the Board’s rejection of ICRGS’ application was based on the Board’s determination that ICRGS’ curriculum was too “narrow [in] viewpoint,” and designed to indoctrinate a particular “religious-based mode of thought. . . ‘rather than preparing them to instruct students in modern science.’” Ultimately, the court concluded, it was ICRGS’ failure to satisfy Board Standard 12 with its curriculum which led to the rejection of its application.
 

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The U.S. Supreme Court is set to hear oral arguments on April 19 in a case arising out of the Ninth Circuit, Christian Legal Society v. Martinez. In Martinez, the Ninth Circuit held that that the University of California Hastings College of the Law in San Francisco had the right to deny recognition to the Christian Legal Society because CLS requires that its officers and voting members abide by the CLS Statement of Faith. The Supreme Court accepted certiorari to resolve the split between the Ninth Circuit’s decision and that of the Seventh Circuit, which held to the contrary in a similar case involving Southern Illinois University's school of law.

The University of California Hastings’ nondiscrimination policy includes provisions on religion and sexual orientation. CLS, contending that the nondiscrimination policy would require it to permit election of officers who do not abide by principles in the Statement of Faith such as a prohibition on extramarital sex, sought exemption from the policy. After the University denied the request and removed the group’s official recognition and funding, CLS filed suit against the school officials.

The Supreme Court briefs and related materials are compiled here. Inside Higher Ed provides a good overview and discussion of the legal and practical issues involved here.

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The parents of Blake Robbins, a 15-year-old student at Harriton High School, an elite suburban Philadelphia public school in the Lower Merion School District, have filed a lawsuit alleging that the school district violated Robbins’ privacy rights when it activated the webcam in his school-issued laptop. In response, the school district does not deny that it has remotely activated laptop webcams in the past. However, the school professed that it only did so to "locate a laptop in the event it was reported lost, missing or stolen so that the laptop could be returned to the student."

According to the complaint, Robbins learned of the school’s alleged use of the webcam when an assistant principal at Harriton High School, Lindy Matsko, cited evidence taken from the webcam on Robbins’ computer in support of the school’s accusation that he was using drugs. The family claims that the items Matsko perceived as “drugs” were actually candy.

While one would anticipate that the federal claims of the lawsuit would receive similar treatment in the district courts, whether in Pennsylvania or here in Washington, had this case arisen in Washington it would have implicated some interesting aspects of Washington privacy law. Washington’s Privacy Act prohibits all persons from eavesdropping or recording confidential communications. The Act prohibits the interception of “private communication transmitted by telephone . . . or other device,” or “private conversation” without the prior consent of all parties to the communication.
 

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On February 4, 2010, in a remarkable decision regarded as the “biggest education-finance lawsuit in three decades,” King County Superior Court Judge John P. Erlick declared that the Washington State Legislature has failed to satisfy the State Constitutional mandate to provide ample education, and ordered the State to remedy its failure.

The litigation started over three years ago, when a collection of parents, students, school districts and community organizations filed suit against the State of Washington, alleging that the State had failed to make ample provision for the education of its children as required by the State Constitution. Article IX, Section 1 of the Washington State Constitution provides: “It is the paramount duty of the state to make ample provision for the education of all children within its borders, without distinction or preference on account of race, color, caste or sex.”

In its decision, the Court carefully defined the terms “paramount,” “ample” and “education” as used in Article IX, Section 1 of the State Constitution. The word “‘paramount’ means that the state must fully comply with its duty under Article IX, §1 as its first priority before all others.” “Ample” means “considerably more than just adequate or merely sufficient . . . so no public school has to turn to or rely upon local levies, PTA fundraisers, private donations, or other non-State sources to provide all of its children the ‘education’ specified in Article IX, § 1.” The term “Education,” the court found, includes a myriad of competencies, as well as skills and knowledge specifically identified in existing state legislation.

The Court recognized that “Washington’s crisis in education is a microcosm of that of the nation.” Nonetheless, the State Legislature’s failure to satisfy the unique Constitutional mandate could not be brushed aside: “The Respondent State has no discretion in whether or not it will comply with the duties mandated by the Washington State Constitution.”

At the end of an exhaustive 73-page analysis, the Court concluded that “[t]he Respondent State is not currently complying with its legal duty under Article IX, § 1 of the Washington Constitution.” The Court ordered the State to: “(1) establish the actual cost of amply providing all Washington children with the education mandated by this court’s interpretation of Article IX, §1, and (2) establish how the Respondent State will fully fund that actual cost with stable and dependable State sources.”

An appeal may very well follow, and it remains unclear from the Court’s opinion whether the State may already be on its way to complying with the order by virtue of House Bill 2261, passed last year.
 

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A federal judge on Monday rejected one of the first legal attempts to roll back the 2003 ruling by the U.S. Supreme Court upholding the consideration of race and ethnicity, in some circumstances, in admissions decisions by public colleges and universities.

The decision by Judge Sam Sparks strongly upheld the admissions policies at the University of Texas at Austin as consistent with the Supreme Court ruling -- and rejected the argument that Texas had failed to meet the tests set out by the Supreme Court. In so doing, Judge Sparks shut down (for now) one strategy of those who oppose affirmative action -- namely trying to say that colleges' policies go beyond what the Supreme Court permitted. But the legal group that brought the case vowed Monday night to appeal to the U.S. Court of Appeals for the Fifth Circuit and, if necessary, to the Supreme Court.

The arguments in the suit against Texas generally attempted to use the Grutter v. Bolllinger decision, which upheld the use of race at the University of Michigan law school, to limit affirmative action. The Texas lawsuit, filed on behalf of a white high school senior who was rejected by UT Austin, noted that Grutter was premised on a link between diversity goals and educational goals, and that the decision did not envision the consideration of race as open-ended. The suit argued that because Texas didn't define a specific percentage goal and continued to use affirmative action after having success at attracting many minority students, the university was going too far.

But Judge Sparks disagreed. "The court finds both the plaintiffs' arguments unpersuasive and finds UT has a compelling interest in student body diversity as articulated in Grutter. First and foremost, nothing in Grutter suggests a university must establish a specific percentage, or range of percentages, the achievement of which would satisfy critical mass," Sparks wrote. He goes on to say that if UT did establish a specific percentage, it might be creating a quota of the sort barred by Grutter.  [Inside Higher Ed]

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Twelve Washington school districts, with the support of an additional seventy-two districts, have lost another battle in their attempt to reform special education funding. According to the state’s appellate court, Washington’s system of funding special education is constitutionally valid. The twelve districts, under the name “Alliance for Adequate Funding of Special Education,” alleged that Washington is underfunding special education, and claimed that Washington’s legislation fails to satisfy the state’s constitutional duty to “make ample provision for the education of all children.” Washington State Constitution, Art. IX, § 1.

By statute, Washington provides its districts with Basic Education Act (BEA) funds based on the average full-time equivalent student enrollment in each district. This BEA funding is the same for all students, regardless of their disposition or actual cost to education. For special education students, Washington supplements that BEA funding on an “excess cost” basis, calculated as the additional cost of educating an average special education student. In addition, Washington provides for “Safety Net” funding designed for students whose needs exceed $15,000 per academic year.

In order to overturn the special education funding legislation, the Alliance needed to prove “beyond a reasonable doubt” that the legislation is “facially” unconstitutional—meaning absolutely incapable of being applied in a constitutional fashion—or that the legislation is unconstitutional “as applied”—meaning that in practice the legislature failed to adequately fund special education to the extent required by the Washington Constitution. The Court of Appeals found that the Alliance failed to meet its burden because: (1) the Alliance’s calculations for the alleged special education funding deficit were incomplete and unreliable by virtue of its exclusion of the BEA from the revenues available for educating a special education student; (2) the Alliance failed to produce evidence proving the invalidity of the excess cost multiplier that is used to determine special education funding; and (3) the Alliance was unable to convince the court that an overall funding deficit existed, even though many students remain ineligible for Safety Net funding because their needs fall below $15,000. The Court of Appeals concluded: “[A]s our Supreme Court has often held, ‘it is not this court’s role to micromanage education in Washington.’” The court then stated that the legislature, not the courts, has “the general authority to select the means of discharging [the] duty to fund education.”

While certainly a disappointing result for the Alliance, this decision is remarkable not only for its outcome, but for the astonishing unity of the Washington school districts supporting the Alliance. While the Alliance consists of only twelve Washington school districts, a staggering seventy-two additional Washington school districts supported the Alliance’s effort as amicus curiae, meaning that the Alliance was able to unite districts representing 62% of Washington special education students. With such a substantial body of districts discontent with special education funding in Washington, we can expect to hear more from the Alliance and other Washington school districts on this issue in the future.

See the entire opinion here.
 

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Posey v. Lake Pend Oreille Sch. Dist., 546 F.3d 1121 (9th Cir. 2008)

Plaintiff, a former security specialist for an Idaho high school, met several times with the principal to express his concerns about student discipline and safety issues, including ongoing drug and weapons violations. Plaintiff then composed and delivered a letter to the school district’s chief administrator and other school administrators. Plaintiff wrote the letter at home, with his own resources, on his own time, and of his own initiative. Thereafter, plaintiff’s job was eliminated and he was not rehired into a newly consolidated position. He brought a lawsuit against the school district claiming retaliation in violation of the First and Fourteenth Amendments to the United States Constitution. The U.S. District Court for the District of Idaho granted summary judgment on the grounds that, as a matter of law, the speech in question had been spoken/written pursuant to the plaintiff’s job responsibilities and as a public employee, it was not constitutionally protected.

The Ninth Circuit reversed the decision, finding that the inquiry into whether a public employee’s speech is protected by the First Amendment is not purely a legal question but presents a mixed question of fact and law. The Ninth Circuit made clear that the inquiry that the court must undertake in a First Amendment retaliation claim is to first determine whether the expressions in question were made by the speaker upon matters of public concern; and second, whether the State actor lacked adequate justification for treating the employee differently from any other member of the general public. Both questions may be determined as a matter of law by the trial court, and if the answer to both questions is affirmative, the court should then consider whether the plaintiff spoke as a private citizen or a public employee. The question of the scope and content of a plaintiff’s job responsibilities is a question of fact. Therefore, if there are genuine and material disputes as to the scope and content of the plaintiff’s job responsibilities, the court must reserve judgment on the third prong of the protected status inquiry until after the fact finding process. Accordingly, the Ninth Circuit reversed the grant of summary judgment and remanded the case to the District of Idaho for further proceedings.
 

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Doe v. Mercer Island Sch. Dist., 288 F. App’x 426 (9th Cir. 2008)

A student challenged his emergency expulsion on procedural and substantive due process grounds in the Western District of Washington. Plaintiff also sought an expungement of the records related to his expulsion that were kept by the school district. Prior to the expulsion, a representative of the school district had met with the student and his mother and gave them oral notice of the expulsion. Later that evening, the superintendent met with the student and his mother for several hours to discuss the incident and the mother’s concerns. The superintendent testified that she did not make the decision to expel the student until near the end of the evening meeting.

On these grounds, the Ninth Circuit upheld the summary judgment dismissal of plaintiff’s claims because he was provided with adequate notice and a hearing regarding the expulsion. The appellate court also upheld the summary dismissal of plaintiff’s substantive due process claims on the grounds that the superintendent made the decision to expel the student based on her knowledge of the student’s assault on his sisters and her concern that the student might be threat to the school. Because courts view with deference a school’s decision in connection with the safety of its students, the Ninth Circuit found that the expulsion did not violate the student’s substantive due process rights.

Finally, the Ninth Circuit affirmed the District Court’s denial of the student’s request to expunge his records of the incident. The school district maintained the records in an internal, confidential file. The student did not allege, and there was no evidence to indicate, that the internal file did not contain an accurate, contemporaneous record of the expulsion and the student’s subsequent reinstatement. The school district also represented that the internal file would be shredded upon the student’s graduation from high school.
 

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Bellevue Sch. Dist. v. E.S., 199 P.3d 1010 (Wash. App. Div. I 2009)

A Washington appeals court has determined that children’s liberty and privacy interests and their right to education are put in jeopardy at initial truancy hearings, and that children are unable to defend these rights themselves. The court held that constitutional due process requires that children be provided with counsel at all stages of a truancy petition.

Under Washington law, if a child reaches a certain number of unexcused absences, the school district is required to file a truancy petition seeking court intervention. A hearing is held to consider the petition; children over 8 years old can be compelled to attend. Until this decision was issued, the court could hold the hearing without either party being represented by an attorney, and without a guardian ad litem for the child. If the truancy allegations are proven, the court can then become more involved in the matter and can order the child to attend school, change schools, appear before a community truancy board, or submit to drug and alcohol testing. If the child fails to abide by the terms of the order, the court may hold the child in contempt of court. It was not until a contempt of court proceeding took place that a child was provided with legal representation.

In this case, the court noted that truancy hearings are the only type of proceeding, civil or criminal, in which a juvenile respondent is not provided with an attorney. It then reasoned that the law presumes that children are neither independent nor capable, and that children cannot be expected to exercise proper judgment in a truancy proceeding that can result in court-ordered violation of bodily privacy through drug or alcohol testing, or the potential deprivation of liberty.

In addition to the privacy and liberty rights that can be impacted at a truancy hearing, the court noted that, somewhat ironically, a child’s right to a free public education is jeopardized because the child could be ordered to transfer to another school or enrolled in an alternative education program. Such an order has the potential to disrupt the child’s education by introducing or exacerbating stigma, uncertainty, and instability, or by placing the child where needed services are not available.

The court concluded: “The initial truancy hearing provides no procedural safeguards to protect the child’s rights, and it is undeniable that the child cannot be expected to protect them herself. Errors in the proceedings are therefore likely, and the risks to the child’s liberty interests are great. Representation is required to ensure that the child understands her rights and the consequences of a truancy finding, that the district is held to its statutory duties and standard of proof, and to ensure that the child can explain her circumstances and respond to any suggested changes in her education program.”