Articles in the School Law category

Supreme Court to hear school case tomorrow

Tomorrow the U.S. Supreme Court will hear its first K-12 case of its current term, Fitzgerald v. Barnstable School Committee. Details on the case, the lower court rulings along the way, and NSBA’s brief to the court are here, courtesy of NSBA’s Legal Clips. The local newspaper from the Massachusetts town where the case arose, the Barnstable Patriot, has a good article here, and USA TODAY here.

The question for the Court is whether Title IX, which prohibits sex-based discrimination in federally funded educational institutions, precludes a legal claim over the same discrimination that is brought under the Equal Protection Clause via Section 1983, a federal statute that gives plaintiffs a legal lever to sue public institutions and public officials for violating federal constitutional or statutory rights. What’s at stake from the plaintiffs’ standpoint is expressed on this Title IX blog:

The availability of both Title IX and constitutional remedies is important to sexual harassment plaintiffs like the Fitzgeralds because constitutional claims are not subject to the case law limiting liability to cases involving ‘deliberate indifference.’ Moreover, unlike Title IX claims, which may only proceed against institutions, 1983 plaintiffs may sue individuals who were acting ‘under color of law’ when violating the plaintiff’s constitutional rights. Lastly, some courts have held that Title IX plaintiffs are not entitled to punitive damages, a remedy that 1983 allows.

That pretty well sums up, from the school perspective, what’s really going on here. NSBA argues in its brief, which was joined by the American Association of School Administrators and the American Council on Education, that making a constitutional issue out of a peer-harassment case like this one is duplicative of Title IX, simply isn’t necessary to make schools take such harassment seriously, and would have some serious downsides. In fact, NSBA argues, Title IX’s protection is stronger than Section 1983′s in such cases.

By the way, as upsetting as the harassment allegations against the third-grader were in this case (and they are), the lower courts in the case specifically rejected the argument that the school district’s response to them was one of “deliberate indifference.” The police even investigated the alleged incidents but found the evidence was inconclusive.

Stay tuned.

Erin Walsh|December 1st, 2008|Categories: NSBA Opinions and Analysis, School Law|

California law puts school kids with diabetes in a bind

The Sacramento Bee reports that a state court has ruled that a state law prohibits school personnel other than nurses from administering insulin injections to students with diabetes. Nurses associations successfully sued over a 2007 rule that allowed other trained staff to administer shots. That rule, in turn, had come out of a 2005 lawsuit from the opposite direction: parents who said the nurses-only rule and the shortage of nurses meant they were keeping their diabetic children out of school or having to leave work to come give the shots themselves. Details on that now invalidated agreement, from the Ventura County Star and NSBA’s Legal Clips, are here.

This is the latest development in a what is a big, nationwide issue of nursing services in schools. This article from the Daily Herald in suburban Chicago focuses on the fact that Illinois law does not require nurses in every school. But the Associated Press reports that Iowa’s law requiring them is causing financial hardships for some school districts, 38 of which have applied for waivers. The Arizona Republic reports that budget cuts are affecting the ability of school districts to provide nurses in that state, which is not among the dozen or so with such legal mandates. And Minnesota’s Savage Pacer reports on concerns in the Prior Lake-Savage Area Schools about nurses being spread too thin.

Certainly BoardBuzz doesn’t dispute that nowadays, when public schools are serving children who have severe disabilities and health conditions in the least restrictive educational environment, the needs are greater than ever. After all, how many times have we ourselves pointed out that the federal bean-counters finally needs to stop trying to stick it to school kids by cutting Medicaid funding—that they need to catch up with the reality that the activities and services schools are required to use to serve all children aren’t frills. Nurses aren’t luxuries, either. In an ideal world, who wouldn’t prefer a school nurse in every school?

But the budget news from all over—including California, Illinois, Iowa, Arizona, and Minnesota—sounds the same theme. Just as fiscal realities mean some school boards may need to think about unfamiliar options like having one highly qualified teacher and several highly qualified paraprofessionals teach larger groups of students, it may be that school boards will need more, not less, flexibility in figuring out how to provide for things like insulin injections.

And for federal and state policy-makers—who, after all, are also making the tough budget and tax decisions that in the end affect schools—that means setting less, not more, prescriptive rules for how schools get the job done.

Erin Walsh|November 18th, 2008|Categories: NSBA Opinions and Analysis, School Law, Wellness|

Is public education becoming “post-racial”?

An NSBA webinar this coming Friday will take on issues arising from one of the key intersections of race and public education in America. Details below, but first: A lot of the buzz surrounding Barack Obama’s victory focuses on what it heralds about race in American society and what it portends for the future on those questions. In some ways, the election of our first African-American president is the culmination of the civil rights movement. In other ways, some suggest, it represents a generational torch-passing—a page-turning that transcends the traditional 1960s paradigms of that movement.

So what about public education? The Supreme Court’s decision in the Seattle and Louisville student assignment cases, and its aftermath, focused attention on the reality of racial isolation in U.S. schools and left school boards and others re-evaluating whether and how to address the issue. Some analysts like Richard Kahlenberg have suggested that, as a matter of legal and social reality, it’s time to start focusing less on race and more on socio-economics. Others say we should just get over the diversity thing altogether and focus on good schools. At the same time, No Child Left Behind is quite overtly race-conscious, with its emphasis on closing achievement gaps among racial subgroups.

As these issues of race and public education play out, and as the nation grows more diverse, another focal point hits close to home: racial diversity on school boards. On that front, the results of one election last week were tossed out before voters even cast their ballots. A California judge had invalidated, in advance, the school board election results for Madera Unified School District, finding that the at-large election of the entire board was the reason only two Latino members have served in a district in which 82% of the students are Latino.

What does the law say about this? And does the racial composition of the school board make any real educational difference for children? Why would some districts want to use at-large elections anyway? And what are some options for boards?

NSBA’s Council of Urban Boards of Education (CUBE) is offering a short webinar this Friday, Nov. 14, 2:30-3:00, to address these and other questions. Join NSBA Senior Staff Attorney Tom Hutton to review the most recent issue of the NSBA law and policy newsletter Leadership Insider, and what the research says. If you’d like to participate, just send an e-mail to CUBE’s Manager of Member services, Kevin Scott, at

Erin Walsh|November 10th, 2008|Categories: Announcements, Elementary and Secondary Education Act, NSBA Opinions and Analysis, School Boards, School Law|

Are you really constrained by tenure?

It’s common to hear superintendents and school board members bemoan the constraints placed upon their decisions by state laws and teacher’s contracts.

“Tenure laws prevent us from getting rid of bad teachers,” they complain. “Our contract keeps us from transferring experienced teachers to high-need schools.”

But is that really the truth? Or is the real problem that school leaders have fallen into a mental trap, allowing commonly held assumptions about the law and teacher’s contract to discourage them from wielding the considerable authority they still hold?

Those are the questions raised in a thought-provoking paper, “Cages of Their Own Design? Superintendents and the Law,” written by Frederick Hess of the American Enterprise Institute for Public Policy Research (AEI) and Lance Fusarelli of North Carolina State University.

They presented their paper at a recent conference sponsored by AEI and the Thomas B. Fordham Institute in Washington, D.C.

What Hess and Fusarelli argue is that school leaders need to start thinking, as some would put it, “outside the box.” Too often, superintendents misunderstand and overstate the constraints placed upon them by legal and contractual agreements.

They also are too willing to abide by past practices and assumptions. If someone says “we cannot transfer teachers under the contract,” that’s accepted without anyone asking an attorney to take a hard look at what the contract language actually says.

The paper points to several school leaders who chose to look at the law in a different way—not as a restriction on their power but as a tool they could wield to enact reform. For example:

• In Washington, D.C., Schools Chancellor Michelle Rhee dusted off “a decade-old statute permitting principals to weigh other factors alongside seniority in staffing.” Before that decision, district officials had complained they could do to stop teachers from using seniority rules to transfer to better schools.

• In Prince George’s County, Md., a former superintendent, John Deasy, transferred hundreds of teachers and introduced a voluntary met pay plan. Although the teacher’s contract was viewed as very restrictive, Deasy noted that nothing in the contract’s language prohibited his actions. “Why does it not happen? . . . Most people see the contract as a steel box. It’s not. It’s a steel floor with no boundaries around it.”

• In New York City, Schools Chancellor Joel Klein brushed aside the generally accepted viewpoint that the cost of removing bad teachers was too high—and set up a special unit of attorneys to “advise principals and litigate incompetence cases against ineffective, tenured teachers.”

All of this highlights the opportunities for reform that become available when the law is not viewed as a barrier to change—but simply as the boundaries under which change must take place.


Kathleen Vail|October 16th, 2008|Categories: American School Board Journal, Governance, School Law|

Will Supremes answer the question this time?

From NSBA’s free weekly Legal Clips e-newsletter BoardBuzz gets word that an Oregon school district is asking the Supreme Court to resolve a special ed issue on which it split 4-4, with Justice Anthony Kennedy recusing himself. Here was our take when that indecision was handed down a year ago.

The Legal Clips item points to a meaty article in the Oregonian and provides links back to the whole history of this issue before various courts, which had split on the question before the Supremes split on it themselves. The question is whether taxpayers are on the hook to pay private school tuition for the special education of a student who has yet to receive services from the school district. The 4-4 result in the Tom F. case left the answer to that question as “Yes for now” in the Second Circuit, where that case arose, but the answer remains “No” in some other places.

The Oregonian quotes the superintendent of the Forest Grove School District, Jack Musser, as saying, “We are proceeding with this not only for the Forest Grove district but the state and the rest of the nation.” That’s the kind of leadership we’ve applauded before. The Oregonian goes on to note that:

The National School Boards Association is preparing an amicus brief supporting the school district, said deputy general counsel Naomi Gittins. Gittins said IDEA’s purpose is to make parents and schools work together to provide individualized services for a student with a disability. “The 9th Circuit’s ruling really goes too far in that school districts are on the hook for something they didn’t know they needed to provide for parents,” she said.

So will the Court grant the request to hear the case? No one’s sure why Justice Kennedy recused himself last time. If it’s something very specific about that case, maybe. But if it’s something about the legal issue itself, Forest Grove—and everybody else—is out of luck. The Oregonian ends by quoting Lehigh University education law professor Perry Zirkel as saying, “In my view, it’s worth trying.”

By the way, if you’re not already getting Legal Clips, try it out by self-subscribing. In addition to the special education case, last week you would have been treated to more details about the ADA issue we flagged here, lawsuits over “timeout rooms,” the latest on legal challenges to high school exits exams and other high-stakes tests, a dispute over recent federal guidance about diversity efforts in schools, the Arizona lawsuit over funding for English language learners, and yet another church-state tiff, among other things. And hey, the price is right.

Erin Walsh|September 23rd, 2008|Categories: NSBA Opinions and Analysis, School Law|

A big win for N.C. kids, but will politicians take it away?

The North Carolina School Boards Association (NCSBA) has won a big judgment for North Carolina’s children in the lawsuit it brought against the state over funds the state wrongfully withheld from schools from 1995 to 2006. All the details on this long-running saga are here, courtesy of last week’s NSBA Legal Clips service, but here’s the gist: The state failed to direct money from civil fines and forfeitures to technology in schools, which the state constitution requires. Now a North Carolina court has determined the state owes schools nearly $750 million.

The court said it wished the judgment had been unnecessary, and it placed the blame pretty squarely on one side:

The Court has encouraged negotiations between the plaintiffs and the Legislative and Executive branches because in the end the issue is whether the legislature will appropriate funds to make up for the resources which were required to go to public schools under Article IX, Section 7 of the Constitution but which were diverted to other purposes by the defendants. The Plaintiffs have often expressed their willingness to settle on a lesser amount than the total which was improperly withheld from the schools from 1995 to 2006. The Plaintiffs have been exceptionally patient in pressing their claim for relief for moneys that clearly were owed to them over a long period of time. Indeed, the issue of whether the constitution requires civil penalties to go to public schools was decided in the Craven County case in 1996, and most of the present lawsuit should not have been necessary.

Not much ambiguity there. But school boards, parents, and kids may need still more patience. Some state lawmakers still don’t seem to have learned the lesson, according to the Raleigh News & Observer. Having been zinged for improperly diverting money from children in the first place, they now are talking about satisfying the court’s judgment simply by taking money away from other education programs.

In a statement, NCSBA’s executive director Ed Dunlap warns, “NCSBA does not believe that such a response would comply with the court order which is intended to restore technology funding that was wrongly diverted to other purposes. Moreover, taking that amount of money from school operating funds would cripple the public schools.” NCSBA has made clear that it’s willing to work with state officials so that schools can be paid back in a manageable way over time.

“All kids can learn,” goes the battle cry in education. Hopefully the same thing applies to legislators.

Erin Walsh|August 20th, 2008|Categories: NSBA Opinions and Analysis, School Law|

The Norfolk 17

Everyone knows about the Little Rock Nine who walked across racial lines to go to school. The landmark case Brown v. Board of Education of Topeka re-shaped education in the south and the Little Rock Nine had to have military protection to go to school safely. They received a lot of press, movies were made, books were written, and awards were named after them. But unless you live in Virginia (or to be more specific, southern Virginia), can you honestly say you’ve heard of the Norfolk 17? We, at BoardBuzz picked up on this item from the AP yesterday.

A little history first–rather than follow the Federal Law, Viginia decided to close schools to avoid accepting black students in the late 1950s. The movement was called “Massive Resistance” – unlike Martin Luther King, Jr.’s “Passive Resistance,” the goal was not unity. In a city like Norfolk, private academies opened for white students only. Black students were left out, and had to find schools elsewhere, but were turned away every time they tried to enter a school. After the Supreme Court of Virginia got involved and overturned the Massive Resistance laws, 17 students attended schools that were all white. They were greeted with insults, racist comments, and mob mentality. We can only imagine what they had to go through to get an education.

Over the weekend, the surviving members (10 of the 14 surviving members attended) got together to honor the 50th anniversary of their groundbreaking actions and courage. Every Independence Day we honor our country and reflect on the great nation we have grown into over the last 232 years. But there are times when we are reminded of how far we’ve come in just the last 50 years, and how far we still need to go. NSBA’s mission is, “excellence and equity in public education through school board leadership.” While we work to reach this goal, we also need to recognize those who broke ground in the past, yet are often forgotten.

Erin Walsh|July 8th, 2008|Categories: Governance, NSBA Opinions and Analysis, School Law, Student Achievement, Teachers|

Two more Supreme Court decisions that matter to schools

Last week, BoardBuzz got word of another couple of Supreme Court rulings in which NSBA had submitted friend-of-the-court briefs. Both of these decisions were age discrimination cases.

In Meacham v. Knolls Atomic Power Laboratory, the court said that in a case in which employees claim their employer’s decision had an unfair impact on older workers, the employer has the burden of proof when it argues that its decision actually was based on permissible “reasonable factors other than age.” For its part, NSBA, with pro bono assistance from Hogan & Hartson school lawyers, had warned the justices about further encumbering public school employment decisions with legal complications at a critical time of great change in public education—change that is forcing school boards to make tough decisions that sometimes may happen to have more impact on older employees, but not for any nefarious reason. The court acknowledged employer concerns were legit, but basically said they should be directed to Congress: “We have to read it the way Congress wrote it.” More details on the ruling, background on the case, and NSBA’s brief are here.

The same day, in Kentucky Retirement System v. Equal Employment Opportunity Commission, the court rejected the idea that a retirement system automatically “discriminates because of age” just because it bases pension eligibility in part on age and treats employees differently based in part on their pension status. NSBA’s take on this one, with a pro bono hand from school lawyers from Minnesota’s Johnson & Condon, was that if the court were to come out the other way, it would threaten thousands of school district retirement plans, which were not based on the kind of arbitrary stereotypes the federal age discrimination law is intended to address. The court found that Kentucky’s system is not based on such stereotypes, has a non-age-related reason for the disparity challenged here, and in other cases actually treats older employees better than younger ones. The details and background on this one are here.

Interesting presidential election year sidenote: For those on both sides of the partisan world who like to boil down the important issue of Supreme Court appointments into convenient soundbites to rile up their respective bases, these cases aren’t especially helpful. As Linda Greenhouse of the New York Times points out, employers have come up short quite a bit this term, despite the “right-wing” court. And look at how the votes came out in the KRS case: on one side, Breyer, Roberts, Stevens, Souter, and Thomas—on the other, Kennedy, Scalia, Ginsburg, and Alito. Try making that one about “liberal” vs. “conservative” judges!

Erin Walsh|June 24th, 2008|Categories: NSBA Opinions and Analysis, School Law|

Would you pay $700,000 to chaperone your child’s field trip?

Parent chaperones generally have enough to worry about on a field trip, from maintaining basic order to keeping kids safe. A recent trend of court decisions may add personal liability to the list of chaperones’ concerns—and may come at such an outrageous price tag as to deter many parents from volunteering. The Associated Press reported a recent court decision ordering a parent chaperone to pay $690,000 to the parents of an 18-year-old high school student, Lauren Crossan, who died from falling off a balcony on a cheerleading trip to Hawaii.

In another case, a parent chaperoning a dance was sued when a student broke his nose while dancing. Luckily, the PTA had liability insurance. Such liability insurance is increasingly common, since, like most things schools do, chaperoning comes with some amount of risk. But there also seems to be an undertone of a litigious American society.

James Krueger, who represented the student’s family and has handled many other cases of children injured while under someone else’s supervision, stated: “If you’re a good parent, you’re not going to have problems. If you’re a crappy parent, you are.” But sometimes even being the best parent is not enough to stop a child from making a poor decision or prevent every possible injury a child may receive. Most parents have probably been in the emergency room with a child with a broken bone at least once—that doesn’t make them bad parents.

NSBA’s own Lisa Soronen weighed in as well.

Sometimes it takes an event like the Crossan lawsuit draw attention to a potential risk, said Lisa Soronen, a senior staff attorney with National School Board Association in Alexandria, Va.

“Many parents do chaperone and don’t think a think about it for a second,” she said. “Almost everything a school does involves some amount of risk.”

The key is to work with the school or sponsoring organization to reduce the risks, Soronen said. Students and chaperones should be made aware of the expectations while on a trip, she said.

How does your school district handle chaperones? Leave us a comment and tell us what you think.

Erin Walsh|June 19th, 2008|Categories: Governance, NSBA Opinions and Analysis, School Law, School Security, Student Achievement, Wellness|

Phew! Schools dodge lawsuit bullet

The Associated Press reports that the U.S. Supreme Court has issued a favorable ruling in a case in which NSBA had weighed in. In Engquist v. Oregon Department of Agriculture, the court rejected the idea that an individual public employee can sue his or her employer for violating the Equal Protection Clause for discrimination against a “class of one.”

The Equal Protection Clause protects “suspect classes” like race, gender, etc., but the courts more recently have recognized this “class of one” theory for certain plaintiff who say they were treated differently from other similar individuals—even if no “suspect class” was involved. The issue in this case was whether the “class of one” theory applies in lawsuits brought by public employmees. Most lower courts had said yes, but the high court ruled 6-3 otherwise.

The details on the case, including NSBA’s brief to court, are available courtesy of NSBA’s Legal Clips, starting here with an excerpt from coverage of the oral arguments by Education Week’s Mark Walsh. NSBA’s brief, written pro bono by Elizabeth Eynon-Kokrda and Kenneth W. Hartman of Baird Holm, LLP, in Omaha, Nebraska, warned the court against turning routine employment disputes into constitutional crises. The court got it. Check out NSBA’s appreciative press release.

Erin Walsh|June 9th, 2008|Categories: NSBA Opinions and Analysis, School Law|
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