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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A prominent University of Alaska marine-conservation specialist appears to have lost a battle against changes in his working conditions that he had blamed on his institution's unwillingness to alienate the oil industry, which holds considerable sway in his state.

Richard Steiner, a professor of marine conservation at the university, had become a cause célèbre among some environmental groups after he accused the university of responding to his outspoken criticism of oil interests by denying him federal grant funds, subjecting him to harassment, and subsequently moving his office to punish him for filing a grievance about such matters in March.
In a harshly worded memorandum rejecting all of Mr. Steiner's claims, the university's general counsel, Roger Brunner, who had been designated by President Mark R. Hamilton to hear Mr. Steiner's final appeal, characterized the professor as having a history of unsuccessfully bringing complaints of violations of his academic freedom in efforts to gain an upper hand with his supervisors.

"In many regards, the current claims appear to be a continuation of Professor Steiner's attempt to free himself from supervision and to have the university create a different job for him which would be more to his liking," Mr. Brunner wrote in the memorandum, which noted that the grievance requested that the university establish a "permanent, autonomous faculty chair for environmental sustainability" on the professor's behalf.

In an interview on Tuesday, Mr. Steiner said Mr. Brunner's decision "looks like the end of the road" and he doubts he will choose to stay there given the circumstances he now finds himself in. "I have very few options here other than to leave the university, which I am likely to do very soon." [The Chronicle of Higher Education]

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A judge has thrown out a lawsuit filed by a former Regent University law student who was suspended after posting a picture on the Internet of school founder Pat Robertson making what appeared to be an obscene gesture.

U.S. District Judge Jerome B. Friedman of Norfolk rejected Adam Key’s claims that Regent and Robertson, the school’s chancellor and president, violated his free speech and due process rights.

Key, a Houston native, was suspended from Regent for one year in 2007 for violating the school’s code of conduct after posting the picture. The picture was a frame of a YouTube video in which Robertson was scratching his face.

Although Regent is a private university, Key said the school received some state and federal funds and therefore was subject to the free-speech and due process standards that apply to the government. Friedman disagreed, writing in his June 5 ruling that a school’s receipt of public funds alone does not make its decisions acts of the state.

Along with the constitutional claims, Key alleged that Robertson defamed him by saying Key had manipulated the photo, and that the school broke its contract with him by not living up to promises made in recruiting materials.

The judge rejected those arguments as well. He said that by presenting a single frame of a video out of context, Key did manipulate the image — and since Robertson’s statement was true, it could not be defamatory.

Friedman also said the “generic recruiting correspondence” received by Key did not amount to a binding contract. [Richmond Times-Dispatch]

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Western Washington University (“WWU”) suspended tenured theatre professor Perry Mills for two quarters without pay for improper behavior, including: use of foul language toward students and faculty both inside the classroom and beyond, brandishing a knife in class, threatening to kill people who offended him, using misogynistic names for female professors, and, on one occasion, telling a student undergoing cancer treatment that she “should have just died of cancer.”

After attempting informal methods to resolve the issue, WWU’s provost made a formal statement of charges against Mills for violation of the Faculty Code of Ethics. Following a closed hearing, a WWU hearing panel of five faculty members recommended suspension without pay for two quarters. The WWU Board of Trustees issued a final order implementing the recommendation.

As permitted by Washington’s Administrative Procedure Act (“APA”), Mills appealed his suspension to the Washington State Superior Court, which denied Mills’ appeal. Mills then sought direct review from the Washington Supreme Court, which in turn transferred the case to the Washington Court of Appeals.

Reviewing WWU’s suspension of Mills, the Washington Court of Appeals concluded that good cause existed for the suspension, and further that the suspension did not violate the terms of Mills’ employment contract. The Court of Appeals rejected Mills’ claim that WWU’s Code of Ethics was unconstitutionally vague, as well as Mills’ claim that the offending speech constituted protected speech under the First Amendment. However, the Court of Appeals did find that WWU’s use of a closed hearing, rather than a hearing open to the public, violated the APA’s open hearing provision. Accordingly, the Court of Appeals vacated the WWU’s Board of Trustees’ decision and remanded the cause to WWU for a new, open hearing.

A link to the case can be found here.