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Supreme Court and Federal Update. Lisa E. Soronen NSBA Senior Staff Attorney. 2006-2007 Term. Cases affecting school districts. Morse v. Frederick. BONG HiTS 4 JESUS case 5-4: Student’s First Amendment rights not violated – speech reasonably viewed as promoting drug use

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Supreme Court and Federal Update

Lisa E. Soronen

NSBA Senior Staff Attorney


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2006-2007 Term

Cases affecting school districts


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Morse v. Frederick

  • BONG HiTS 4 JESUS case

  • 5-4: Student’s First Amendment rights not violated – speech reasonably viewed as promoting drug use

  • 9:0: Qualified immunity to principal

  • NSBA brief written by Lozano Smith (Mike Smith, Cathleen Hall)


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3 Big Questions

  • School speech or off campus speech – evidence of school participation

  • What was this message saying exactly – reasonably found to promote illegal drug use

  • On what basis would the Court reach its conclusion and how broad would the decision be


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Court’s Reasoning

  • Narrow ruling focusing on speech promoting illegal drug use

  • Discusses the trilogy – does not really rely on any of the cases

  • Drug testing and TLO

  • Bottom line: schools have a responsibility to stop student drug use – pro-drug messages undermine the district’s ability to do so

  • Not plainly offensive speech under Fraser


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Other Opinions

  • Thomas concurrence: overturn Tinker

  • Alito/Kennedy concurrence: this case is only about promoting illegal drug use not commenting on political or social issues

  • Breyer concurrence: qualified immunity

  • Stevens/Souter/Ginsburg dissent: this was a nonsense banner with an oblique reference to drugs


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Practical Application

  • Written policy was helpful

  • Policy should be narrow

    • Promotion of illegal drugs – Guiles v. Marineau

    • Should exclude political messages

  • Focus on public advocacy not private conversations

  • Underage alcohol use probably can also be banned

  • Context matters – Wine Sips for Jesus


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Mean, Humiliating, or Arguable Harassing Speech

  • How broad will lower courts interpret Morse v. Frederick?

  • Fundamental value at stake in this case is safety from drug use – what is safety exactly?

  • Ninth Circuit has Harper v. Poway

  • Watch the Seventh Circuit


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Cases to Keep in Mind

  • Harper v. Poway – Tinker rights of others

  • Requa v. Kent – demeaning, derogatory, sexually suggestive behavior is per se disruptive

  • Zamecnik v. Indian Prairie – applies Harper

  • Brandt v. Chicago – mean T-shirt contest

  • Morrison v. Boyd County – anti-harassment policy

  • DePinto v. Bayonne – Hitler Youth button


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COSA Resource

  • 2007 School Law Practice Seminar notebook has a great paper and Power Point on this case!

  • Recent discussion on the COSA e-mail groups about “mean” speech


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Seattle and Louisville Cases

  • Issue: Can race be used to assign K-12 students?

  • 5 Justices said the plans were not narrowly tailored

    • Use of race had minimal effect

    • Other options were not considered

  • 5 Justices said diversity is a compelling state interest


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Justice Kennedy on Compelling Interest

  • Compelling interest in avoiding racial isolation and achieving a diverse student body

  • Race should only be one component of that diversity

  • With some showing of necessity students could be assigned on the basis of race alone?


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Kennedy: Decisions Not Held to Strict Scrutiny

  • No systematic, individual typing by race

    • Site selection of schools

    • Drawing attendance lines with general recognition of demographics of neighborhoods

    • Resource allocation

    • Student and faculty recruitment

    • Tracking enrollments, performance, and other statistics by race


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What Do I Hear Over and Over?

  • Whether you can use race and how you can use race depends on what decision you are making (attendance zones v. admission to a school)

  • If you want to use race as a factor in school admissions, use it in combination with other demographic factors

  • Drawing of attendance zones with demographics in mind


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Aftermath

  • Lynn, MA plan immediately challenged (cert denied when O’Connor was on the Court)

  • Louisville starts work on changing its student assignment plan while currently not making assignment decision based on race

  • Attorney tried to jail Louisville school officials for placement decision made before case came down

  • Law firm representing Seattle group challenging the policy wants $1.8 million

  • Tucson decision


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Aftermath

  • Drawing of boundaries is a controversial even where race is allegedly not used – Tuscaloosa, AL, Milton MA

  • Wake County NC raised ceiling on low-income students from 40% to 50%

  • Black teacher in Louisville challenges the teacher assignment policy which keeps percent of black teachers between 7-22%


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COSA Resources

  • NSBA OGC: An Educated Guess: Initial Guidance on Diversity in Public Schools After PICS v. Seattle School District

  • NSBA CUBE: Not Black and White: Making Sense of the U.S. Supreme Court Decisions Regarding Race Conscious Student Assignment Plans

  • 2007 School Law Practice Seminar notebook


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Winkelman v. Parma City School District

  • Issue: can non-attorney parents prosecute IDEA cases in federal court

  • Answer: yes

  • Reasoning: parents have their own “independent enforceable rights” under IDEA – in essence parents are representing themselves


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Why?

  • Majority (7-2 written by Kennedy) lists all the rights given to parents in IDEA and concludes parents have in “independent stake” in substantive decisions

  • Scalia/Thomas: parents can proceed pro se only is cases involving their procedural protections


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Big Fear

  • Drama of dealing with unrepresented parents with bad cases

  • Will non-attorney parents be entitled to attorney fees – probably not


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COSA Resource

  • October 2007 I & A article on parents trying to collect attorney’s fees post-Winkelman


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Ledbetter v. Goodyear Tire

  • Simplified facts: Plaintiff had been given lower pay increases over her 19 year career than men

  • Under Title VII employees have 180 days from “unlawful employment practice” to file charges with EEOC

  • Plaintiff’s theory was each paycheck that is less than it should be restarts the charge period

  • Holding: plaintiffs have 180 days for a pay-setting decision to challenge the decision under Title VII


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Major Victory for Employers

  • 5-4 decision

  • Are employees going to know they have 180 days from a pay increase the figure out they have been discriminated against?

  • Less of an issue in schools?

    • Salary and pay increase public

    • Pay increases and starting pay often based on schedules with across-the-board increases


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BCI v. EEOC: the non-case

  • Issue: Is employer liable for a subordinate employee’s discriminatory animus where the actual decision maker harbored no bias and was unaware of the subordinate’s bias

  • HR employee in different state decides to terminate plaintiff based on information from biased supervisor

  • BCI requested a dismissal – case is going to trial


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Tenth Circuit Decision

  • Plaintiff has to prove biased subordinator’s actions “caused” employment action, so if actual decision maker does an independent investigation into allegations, employer wins

  • In this case: no independent investigation – HR person never asked the employee his version of the story


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Cat’s Paw/Rubber Stamp Circuit Split

  • Investigation standard

  • Lenient standard – did subordinate provide any info that may have affected the decision – 5th Circuit

  • Strict standard – did subordinate play a significant role in the employment decision – 4th Circuit

  • 9th Circuit’s position not discussed


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NSBA’s Brief Attacks Investigation Standard

  • School boards in many states are the “actual” decision makers – hard to uncover bias short of holding a hearing for every employment decision (think hiring)

  • Discourages employees from using in-house grievance channels

  • Burdensome and unproductive (investigation into incident may not reveal evidence of bias)


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Bad Rulings for School District Even with Investigations

  • Mateu-Anderegg v. Whitefish Bay – court concludes principal is the actual decision maker in face of contrary statute (7th Cir.)

  • Kramer v. Logan County – is jury question if school board is actual decision maker in spite of 5 HOUR HEARING (8th Cir.)

  • My advice: particularly in the case of termination, have board investigate possible bias


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2007-2008 Term

Cases affecting school districts


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New York v. Tom F.

  • Issue: Does IDEA require parents to receive reimbursement of private school tuition for a disabled child who has never attended public school?

  • Dad is former CEO of Viacom, tuition is $37,900/year


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Policy Issues

  • 2005-06: 2,240 families sued NYC for private school tuition reimbursement – ½ never tried public school, cost $30 million/year

  • Scam for the wealthy?

  • Hard to compete in a due process hearing with targeted, private school

  • What about cooperation?

  • What about the least restrictive environment?

  • Fuel the voucher movement?


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Another Non-case

  • 4-4 decision 9 days after oral argument affirming Second Circuit (plaintiff wins)

  • Kennedy recused himself

  • 2 sentences decision – votes of individual Justices unknown

  • No precedential value outside Second Circuit – still split with First Circuit

  • Court then denies cert in Frank G., a Second Circuit case with the same issue – Kennedy takes no part in decision


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Mendelsohn v. Sprint

  • Issue: “me too” evidence in disparate treatment case under ADEA

  • Plaintiff laid off in company wide RIF

  • Wanted to admit testimony of 5 other employees

    • Different supervisors

    • No pattern or practice complaint

  • Tenth Circuit admits testimony


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Policy Problems

  • Very easy for employees (especially working for big employers) to find other complainers with different supervisors, work sites, and time frames – summary judgment averted

  • Public records law, unions, and proximity of school buildings make finding complainers even easier

  • Parade of witnesses is very damaging


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Holowecki v. FedEx

  • Issue: Is an EEOC intake questionnaire a “charge” under the ADEA?

  • Under ADEA – plaintiff may file a lawsuit 60 days after filing charges with EEOC

  • Plaintiff filled out intake questionnaire, waited 60 day, filed a lawsuit, then filled out a charge form

  • District court said case was time barred, Second Circuit said questionnaire is a charge


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Why a Charge?

  • EEOC regulations defines a “charge”

  • Questionnaire contained all info required and recommended by the regulation

  • Provided notice the plaintiff intended to “active the administrative process” – forceful tone

  • But EEOC did not treat it like a charge -- never informed the employer of the charge or investigated it

  • Not clear the employee believed it was a charge – though she might have wanted it to be


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Policy Problems

  • In practice, the EEOC uses the questionnaire to gather facts to determine if it wants to pursue a case

  • If a questionnaire is a charge but the EEOC does not treat it like a charge employers miss out on notice and the benefits of EEOC conciliation

  • Another case about timeliness

  • Lead plaintiff in a class action


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CBOCS v. Humphries

  • Issue: Are retaliation claims actionable under Section 1981?

  • Seventh Circuit: yes

  • What is really happening in this case: plaintiff missed the Title VII deadline


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Rationale at Lower Court

  • Section 1981 is about not being discriminated against on the basis of race in making and enforcing contracts

  • Amended in 1991 to include post-formation contract disputes

  • Section 1981 does not mention retaliation

  • Relying on Jackson v. Birmingham the court “reads in” retaliation


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What is at Stake?

  • What does Title VII have that Section 1981 does not have?

    • Strict time frames

    • Exhaustion of administrative remedies

    • Caps on punitive and compensatory damages

  • Employers left to defend old claims with out EEOC assistance


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KRS v. EEOC

  • Issue: use of age as a factor in a retirement plan “arbitrary” so as to facially violate the ADEA

  • Allow me to explain the confusing facts….

  • Disparate treatment case

  • Sixth Circuit holds the retirement plan violates the ADEA


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Why Violates ADEA?

  • Older employees ineligible for disability retirement – can only receive lower “normal” retirement

  • Older disabled retirees get less benefits than younger disabled retirees

  • Plan is discriminatory on its face – proof of animus is not needed

  • Dissent – age and years of service determine benefit, older workers don’t always get less benefits than similarly situated younger workers, no discriminatory animus in helping younger cop hurt on the job


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How Does this Case Affect School Districts?

  • Facts are narrow but possible reach of the case is broad

  • Almost every case the majority cites is a school district early retirement incentive plan (ERIP) case

  • Are all ERIPs in jeopardy:

  • ERIP EEOC dislikes: between ages 55-65 with 10 years of service employee receives $5,000

  • ERIPs EEOC likes: at age 55 or older with 10 years of service employee receives $5,000


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School Law Trends

  • Muslim students – Inquiry & Analysis Feb. 2007

  • FERPA video issue

    • NSBA letter to FPCO

    • New FERPA guidance about law enforcement units

  • E-discovery/litigation holds

    • School Law Practice article

    • Doe v. Norwalk Community College, No. 3:04-CV-1976 (JCH), 2007 WL 2066497 (D. Conn. July 16, 2007)


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School Law Trends

  • Distribution of religious materials

    • 3 recent cases

    • 2 involving students distributing anti-abortion literature in hallways

    • I & A June 2007

  • Post-Garcetti cases – D’Angelo v. Polk County

  • Is the Supreme Court sick of special ed yet – if not is A.K. v. Alexandria the one?


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School Law Trends

  • Cell phones

    • School Law Practice article about searching

    • Technology bundle (to be issued in January) includes an updated School Law in Review article on cell phones

    • Cell phone searching case (Klump), discipline (Laney)

    • Cell phones banned – Price

  • EEOC guidance on caregiver discrimination – Legal Clips and EEOC’s website


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School Law Trends

  • Educator sexual misconduct

    • Lots of press coverage on this lately

    • Jim Keith presentation from 2007 School Law Practice Seminar – Top 10 behaviors to avoid

    • DOE: Educator Sexual Misconduct: Synthesis of Existing Literature

    • Text messages is a big way of catching inappropriate behavior

    • When to investigate – every rumor or every rumor that won’t go away


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School Law Trends

  • 403(b) & 409A

    • New regulations for both

    • Sample 403(b) plan documents should be available from the IRS soon

    • Universal availability under 403(b) – October I & A

    • Fiduciary duty – April I & A

    • COSA audio conference on 403(b)

    • NEA/NSBA guidance on 409A

    • IRS/COSA partnership

    • Follow issues in Federal Regulations & Resources


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Using COSA’s Website

Thanks for attending!


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