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

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On August 5, 2010, the Oregon Supreme Court ruled that a teacher who resigned after showing his students a movie clip that contained profanity was entitled to unemployment benefits. Robert McDowell, a first year language arts and drama teacher in Oregon’s Klamath County School District, played a 10 minute clip from the movie “Glengarry Glen Ross” to his senior English class as part of a lesson about language use and misuse. McDowell was placed on administrative leave and was told that termination would be recommended to the school board because he had not obtained approval before showing the profanity-containing clip to his class as required by school district policy. McDowell consulted with a union attorney who told him that there was absolutely no chance that the school board would overrule the termination recommendation, and then resigned and sought unemployment benefits. Benefits were denied, first on the grounds that McDowell was discharged for misconduct, and later on the grounds that he voluntarily left work without good cause. The Oregon Supreme Court reversed, holding that McDowell had good cause to voluntary quit and was, therefore, entitled to unemployment benefits.

As a preliminary matter, the court noted that if McDowell had been fired, he would have been entitled to unemployment benefits because the school district did not tell him about the pre-approval requirement for profanity-containing movies. Thus, showing the movie did not constitute “misconduct” which made McDowell ineligible for benefits.

On the bigger issue of whether McDowell had good cause to voluntarily quit, the court held that he did because termination would have been a “kiss of death” on his teaching career. Since termination would have plagued him in obtaining future employment, McDowell had no reasonable alternative but to quit and a reasonable person in his situation would have voluntarily quit. Accordingly, McDowell had good cause to quit and was entitled to unemployment benefits.
 

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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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SB 113A–Exempting Certain Schools from Oregon’s Degree Granting Statutes

SB 113A exempts certain schools and specially-accredited school campuses from Oregon’s degree granting statutes set forth at ORS 348.594 to ORS 348.615. The degree granting statutes regulate post-secondary education in Oregon by, among other things, granting the Oregon Student Assistance Commission Office of Degree Authorization the power to authorize approved schools to offer academic degree programs and non-degree programs leading to certificates or diplomas, to validate claims of degree possession, to terminate substandard and fraudulent degree activities, and to terminate activities of diploma mills. See ORS 348.603. SB 113A exempts schools and specially-accredited school campuses from meeting the requirements of the degree granting statutes as long as the school or specially-accredited campus (1) is a non-profit school under § 501(c)(3) of the IRS code, (2) has conferred degrees in Oregon for at least five consecutive years, and (3) is accredited by a regional accrediting association or its national successor. Schools meeting these non-profit, degree conferral, and accreditation requirements are exempt from the degree granting statutes because they do not generate many complaints and are not the source of many enforcement issues encountered by the Office of Degree Authorization. Rather, most of the complaints and enforcement issues relate to for-profit colleges and colleges lacking regional accreditation.

SB 113A became effective on January 1, 2010. It is codified at 2009 Oregon Laws Advance Sheets, Chapter 172, § 1.
 

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HB 2109–Changing Terminology to Keep Oregon Law Consistent with the Carl D. Perkins Career and Technical Education Improvement Act of 2006

HB 2109 replaces the terms “professional technical education” and “professional technical training” with “career and technical education” and “career and technical training” throughout various Oregon statutes. The change in terminology aligns Oregon law with the Carl D. Perkins Career and Technical Improvement Act of 2006. Thus, HB 2109 updates Oregon law and makes technical changes in language to keep Oregon law consistent with federal law.

HB 2109 became effective January 1, 2010. HB 2109 is codified at 2009 Oregon Laws Advance Sheets, Chapter 94, §§ 1-27.
 

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HB 2061–Exempting Certain Students From Increased High School Graduation Requirements

HB 2061 exempts certain students from meeting the increased graduation requirements in ORS 329.451. In 2005, the Oregon legislature increased the overall number of credits required for high school graduation from 22 to 24. At that time, the number of individual math and English credits required also were raised. The increased requirements took effect July 1, 2007, and apply to any student receiving a high school diploma after June 30, 2009. The 2005 law did not, however, contain any provision addressing students who entered high school before July 1, 2007 but graduate after June 30, 2009. HB 2061 fills that gap by exempting students from the increased requirements if they (1) entered the ninth grade during the 2005-2006 school year, (2) attended school during the 2006-2007, 2007-2008, and 2008-2009 academic years, and (3) receive a high school diploma before July 1, 2010. Essentially, the new law exempts students who did not graduate on time from being held to the increased graduation requirements.

HB 2061 became effective on June 30, 2009. HB 2061 is codified at 2009 Oregon Laws Advance Sheets, Chapter 55, §§ 1, 2.
 

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In its last regular session, the Oregon legislature passed four education-related bills, all of which were signed into law by Oregon’s governor. The scope and aim of each of these laws is varied, with some making minor technical changes to terminology in Oregon statutes and others exempting certain students from increased high school graduation requirements. Throughout the next week, we will feature each of these bills and offer a brief description of the effects of the new laws.

SB 595–Expanding Scope of Students Who Are Eligible for Tuition Waivers at Oregon Universities

SB 595 expands the scope of students who are eligible to receive tuition waivers under the tuition waiver program, codified at 2008 Oregon Laws, Chapter 39, § 9. The program allows certain students to obtain tuition waivers for courses which may lead to a bachelors or master’s degree at University of Oregon, Oregon State University, Portland State University, Oregon Institute of Technology, Western Oregon University, Southern Oregon University, Eastern Oregon University, and Oregon Health and Sciences University. Under the 2008 version of the program, tuition waivers only were available to children, spouses, and unremarried surviving spouses of members of the US Armed Forces who died on active duty after September 11, 2001, died as a result of military service connected disability sustained after September 11, 2001, or were 100 percent disabled as a result of military service connected disability sustained after September 11, 2001. SB 595 expands the scope of students who are eligible to receive the tuition waivers by removing the September 11, 2001 death or disability date restriction. Thus, under the new law, tuition waivers are available to any child, spouse, or unremarried surviving spouse of a member of the US Armed Forces who died on active duty, died as a result of a military service connected disability, or was 100 percent disabled as a result of a military service connected disability, regardless of the date of the US Armed Forces member’s death or disability.

SB 595 became effective on June 4, 2009 and operative on July 1, 2009. It is codified at 2009 Oregon Laws Advance Sheets, Chapter 236, §§ 1, 3.
 

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In the face of dwindling state support for higher education, Oregon should convert its three largest public universities into public corporations to make it easier for them to raise money, David B. Frohnmayer, who recently retired as president of the University of Oregon, recommends in a report released today by the Oregon University System. The report calls for giving the University of Oregon and Oregon State and Portland State Universities the type of autonomy that the Oregon Health and Science University acquired in the 1990s, when it became a state-assisted public corporation. A legislative leader quoted in The Oregonian seemed receptive to the idea but said it was unlikely that the Legislature could take it. [The Chronicle of Higher Education]

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Last month, in PENDLETON SCHOOL DISTRICT 16R v. STATE OF OREGON, the Oregon Supreme Court refused to award attorney fees and costs to plaintiffs who filed claims against the State of Oregon. Plaintiffs argued that the legislature failed to appropriate sufficient funds for the 2005-2007 biennium to ensure that the state public school system would meet the quality goals established by law. The trial court granted summary judgment to the State. While the appellate court concluded that plaintiffs were entitled to a declaratory judgment that the legislature had failed to appropriate sufficient funds for the 2005-07 biennium to meet the quality goals established by law, that Court did not rule that the legislature must appropriate in each biennium sums sufficient to ensure that the public school system meets the quality goals established by law.

Plaintiffs then requested attorneys fees and costs on appeal as a prevailing party. The appellate court refused to grant this request, finding that the result that plaintiffs obtained was not the kind of result for the public at large that called for an award of attorney fees. The court did grant costs to plaintiffs in the amount of $1,056.55.

Read the full opinion here.

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A new project is measuring the educational needs of states and regions by combining and comparing existing census data, such as degree completions, poverty rates, and population growth.

Texas, Mississippi, Louisiana, New Mexico, Nevada, and Georgia are the states where the education system faces the greatest challenges in meeting the economic needs of a fast-growing population, according to data from the Educational Needs Index.

The states with the least challenges in that area are North Dakota, New Hampshire, Massachusetts, Connecticut, and Minnesota, the project found.

See how your state measures up. [The Chronicle of Higher Education]
 

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Next year’s graduating seniors at the University of Oregon can rest easy: They will now take their final exams first, in June 2010, and then graduate, instead of the other way around.

Last December the university announced that it was flipping its schedule for final exams and commencement in order to accommodate the NCAA Outdoor Track & Field Finals. The decision, echoing the command of Lewis Carroll’s Queen of Hearts (“Sentence first — verdict afterwards”), advanced the graduation event by a week, to avoid conflicting with the sporting event. Priorities must be respected.

But now the university has changed its mind and restored commencement to its originally scheduled date, June 12, 2010. What changed?

According to a message to the campus this week from James C. Bean, senior vice president and provost, the NCAA seems likely to eliminate regional qualifying meets, which would enable the finals to be moved forward by a week. In addition, Mr. Bean said, concerns have been allayed that local hotels in Eugene, Ore., might not be able to handle the crowds for both the NCAA event and commencement at the same time. [The Chronicle of Higher Education]
 

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Even as colleges nationwide celebrate commencement season, hundreds of schools are failing to graduate a majority of their students in six years, a report says today.

Nationally, four-year colleges graduated an average of just 53% of entering students within six years, and "rates below 50%, 40% and even 30% are distressingly easy to find," says the report by the American Enterprise Institute, a conservative think tank. It's based on data reported to the Education Department by nearly 1,400 schools about full-time first-time students who entered in fall 2001.

Examples from the study, which grouped schools by categories in Barron's Profiles of American Colleges:

Among schools that require only a high school diploma for admission, Heritage University and Walla Walla University, both in Washington state, reported graduation rates of 53% and 17%, respectively.

In the "most competitive" group, Amherst College in Massachusetts and Reed College in Portland, Ore., graduated 96% vs. 76%, respectively.

The data have limits: They don't account for students who transfer, for example. And they should not be used as a sole measure of quality, the report says, because "schools should not be unfairly penalized for maintaining high standards." [USA Today]

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Justin Bathon at the Edjurist blog posted a good piece this morning that provides resources for laws relating to open meetings. Anyone in the public sector is encouraged to bookmark these resources and utilize them often. The Washington Supreme Court recently issued an opinion, Rental Housing Association of Puget Sound v. City of Des Moines that clarifies the exemptions available under Washington's Public Records Act. A summary of that case is posted here.

School boards really struggle with the Open Meeting Laws (sometimes called Sunshine Laws).  Here is a compendium of every state's Open Meetings laws.  Like any secondary source, this compendium is not a substitute for primary sources.  I have noticed errors in the compendium.

Also, most states have a handbook on Open Meetings/Records laws for new board members and most are online. NSBA has some of them here.  Follow these links to guides for Washington, Oregon, and Idaho.  I was not able to find a guide for Alaska, but the statues are here.

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The Oregon Supreme Court reached an awkward decision in late January, finding that the legislature violated the Oregon Constitution by failing to fully fund public education, yet also finding the same constitutional provision provides no remedy or enforcement power.

In the November 2000 general election, the voters adopted a ballot measure that became a constitutional amendment (Article VIII, section 8), which states, in part:

(1) The Legislative Assembly shall appropriate in each biennium a sum of money sufficient to ensure that the state’s system of public education meets quality goals established by law, and publish a report that either demonstrates the appropriation is sufficient, or identifies the reasons for the insufficiency, its extent, and its impact on the ability of the state’s system of public education to meet those goals.

The Quality Education Commission (QEC) was established to determine the necessary amount of funding each year. The Legislature has never appropriated the amount of money that the QEC determined necessary. For the 2003-2005 biennium, the QEC concluded $6.995 billion was needed; the Legislature appropriated $4.9 billion. For the 2005-2007 biennium, the QEC concluded that $7.035 billion was needed; the Legislature appropriated $5.2 billion.

Focusing on the first clause of Article VIII, section 8, eighteen school districts and seven public school students sued the State of Oregon with the goal of forcing the legislature to appropriate funding at the level recommended by the QEC. The State argued that the legislature is not required to fund education at the levels set by the QEC because the second clause of Article VIII, section 8 permits it to publish a report identifying the reasons for the insufficient appropriation, the extent of the insufficiency, and the impact on the education system.

The Oregon Supreme court recognized these contradictory provisions of Article VIII, section 8, and also recognized that it could not ignore the contradiction as the parties to the lawsuit had done: “[The school districts] emphasize the funding requirement at the expense of the reporting requirement, while the state emphasizes the reporting requirement a the expense of the funding requirement. Unlike the parties, we are not free to ignore any part of Article VIII, section 8.” The court, therefore, decided that the legislature had violated constitution and failed to fully fund the public school system. The court then decided that courts were not able to enforce the funding of public schools because to do so would ignore the legislature’s reasons for the shortfall. In addition, if the courts were to enforce funding a the specified levels, then the deficiency could not “‘impact . . . the ability of the state’s system of public education to meet those goals,’ because the courts would not permit the deficiency to continue.” Since an injunction requiring the legislature to fund the public school system at the levels required by the Oregon Constitution would not be consistent with the reporting requirement, the court decided that it was not able to impose such an injunction.

A copy of the opinion can be found here.