Supreme Court and Federal Update

1. Supreme Court and Federal Update Lisa E. Soronen NSBA Senior Staff Attorney

2. 2006-2007 Term Cases affecting school districts

3. 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)

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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?

13. 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

14. 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

15. 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

16. 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%

17. 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

18. 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

19. 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

20. Big Fear • Drama of dealing with unrepresented parents with bad cases • Will non-attorney parents be entitled to attorney fees – probably not

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

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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)

28. 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

29. 2007-2008 Term Cases affecting school districts

30. 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

31. 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?

32. 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

33. 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

34. 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

35. 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

36. 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

37. 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

38. 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

39. 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

40. 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

41. 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

42. 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

43. 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

44. 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)

45. 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?

46. 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

47. 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

48. 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

49. Using COSA’s Website Thanks for attending!