Maree Sneed Partner Maree.sneed@hoganlovells Hogan Lovells U.S. LLP 555 13th St. NW

1. The U.S. Supreme Court: Nine Justices Dressed in Black and How Their Opinions May Impact Your School District American Association of School Administrators July 12, 2011 Maree Sneed Partner Maree.sneed@hoganlovells.com Hogan Lovells U.S. LLP 555 13th St. NW Washington, DC 20002 (202) 637-6416 Chris Lott Associate Christopher.lott @hoganlovells.com Hogan Lovells U.S. LLP 555 13th St. NW Washington, DC 20002 (202) 637-6416

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3. Overview Overview of the Supreme Court Recent Supreme Court Decisions Affecting School Districts Cases on the Supreme Court's Radar in the October 2011 Term and Beyond Developments since the Supreme Court’s Decision in PICS 3

4. True or False #1 In assigning students to school, it is never permissible to consider race or ethnicity. 4

5. True or False #2 It is clearly established that the police need a warrant when interviewing a student on school grounds. 5

6. True or False #3 As in the fable – where the cat got burned when the monkey convinced the cat to do the dirty work and pull the chestnuts out of the burning fire – a school district can be held liable in a discrimination lawsuit when a supervisor’s bias causes another school official to take an adverse employment action based on that bias. 6 6

7. True or False #4 School officials can only be held liable for their intentional violations of the IDEA, not for negligent conduct. 7

8. 1. Overview of the Supreme Court 8

9. 1. Overview of the Supreme Court 9

10. 1. Overview of the Supreme Court Chief Justice John Roberts joined the Court in 2005. He was appointed to the Court by President George W. Bush.

11. 1. Overview of the Supreme Court Justice Scalia joined the Court in 1986. He was appointed to the Court by President Ronald Reagan. Justice Kennedy joined the Court in 1988. He was appointed to the Court by President Ronald Reagan.

12. 1. Overview of the Supreme Court Justice Thomas joined the Court in 1991. He was appointed to the Court by President George Bush. Justice Alito joined the Court in 2006. He was appointed to the Court by President George W. Bush.

13. 1. Overview of the Supreme Court Justice Ginsburg joined the Court in 1993. She was appointed to the Court by President Clinton. Justice Breyer joined the Court in 1994. He was appointed to the Court by President Clinton. 13

14. 1. Overview of the Supreme Court Justice Sotomayor joined the Court in 2009. She was appointed to the Court by President Obama. Justice Kagan joined the Court in 2010. She was appointed to the Court by President Obama.

15. 2. Recent Supreme Court Decisions Affecting School Districts 15

16. 2. Recent Supreme Court Decisions Arizona Christian Sch. Tuition Org. v. Winn and Garriott v. Winn Camreta v. Greene Staub v. Proctor Hospital Christian Legal Society v. Hastings Borough of Duryea v. Guarnieri J.D.B v. North Carolina 16

17. 2. Recent Supreme Court Decisions 17 • Arizona Christian Sch. Tuition Org. v. Winn and Garriott v. Winn • Issue: The substantive question was whether a program in Arizona that gave taxpayers a tax credit for making donations to religiously affiliated school-tuition organizations (STO) violated the Establishment Clause of the First Amendment? • Issue: There was also a “threshold” legal question: Whether taxpayers challenging the law had standing to challenge the program in federal court?

18. The challenged Arizona program: In 1998, more than 90% of the tax credit funds were directed toward religiously affiliated STOs. In 2003 and 2004, 82% and 79% of scholarships were awarded by STOs that restricted scholarships to religious schools. Most scholarships are awarded to students already enrolled in private, religious schools. At the same time, funding for public education in Arizona has been relatively low, and a budget crisis forced the State to make additional severe cuts. 2. Recent Supreme Court Decisions 18

19. The District Court upheld Arizona’s program on the grounds that: The program’s purpose was religiously neutral. The program provides “genuine and independent” choice. Any religious effect of the program is a result of the choices of taxpayers and parents and cannot be attributed to the government. 2. Recent Supreme Court Decisions 19

20. The Ninth Circuit Court of Appeals reversed the district court’s decision. That court found: Plaintiffs’ allegations that the purpose of the program is to provide choice may be a sham. The program is not a “genuine and independent” choice program because parents have no true choice under the program. The effect of the program is to benefit religious schools. 2. Recent Supreme Court Decisions 20

21. 2. Recent Supreme Court Decisions Hogan Lovells prepared a friend of the court brief for the Supreme Court on behalf of the National School Board Association (NSBA), the American Association of School Administrators, the National Education Association, and several other groups. The brief argued, among other things, that: The tuition tax credit program violated the Establishment Clause. The tuition tax credit program had negative effects on public education in Arizona. 21

22. 2. Recent Supreme Court Decisions Supreme Court’s decision: • Case dismissed because the plaintiffs did not have “standing” to challenge the program. • Holding: Taxpayers only have standing to challenge a government spending program under the Establishment Clause when there is a direct appropriation of funds, as opposed to a tax credit. 22

23. “And that result—the effective demise of taxpayer standing—will diminish the Establishment Clause’s force and meaning. Sometimes, no one other than taxpayers has suffered the injury necessary to challenge government sponsorship of religion. Today’s holding therefore will prevent federal courts from determining whether some subsidies to sectarian organizations comport with our Constitution’s guarantee of religious neutrality. Because I believe these challenges warrant consideration on the merits, I respectfully dissent from the Court’s decision.” -Justice Kagan 2. Recent Supreme Court Decisions 23

24. Takeaway Will more states create tax benefit programs that aid private schools? Who will be able to challenge these laws? 2. Recent Supreme Court Decisions 24

25. 2. Recent Supreme Court Decisions B. Camreta v. Greene and Alford v. Green Issue: Does the Constitution require police and child protection workers to obtain a warrant before interviewing children about claims of sexual assault at school? 25

26. 2. Recent Supreme Court Decisions The case involved a dispute about a warrantless interview on school grounds. In 2003, a child protection investigator and a sheriff’s deputy came to a school to interview a 9-year-old about whether her father had sexually abused her. A school guidance counselor removed the student from her classroom and brought her to another room in the school where the investigator and deputy waited. The police did not have a warrant to interview the child. Allegedly, the questioning lasted two hours; the student at first denied the abuse, but then changed her story when she feared the bus would leave without her. 26

27. 2. Recent Supreme Court Decisions The student and the student’s mother sued under the 4th Amendment’s search and seizure clause. The claim was that the Child Protective Services (CPS) investigator, the deputy, the school district, and the school guidance counselor, seized the child without a warrant in violation of the 4th Amendment. The school district and school counselor were dismissed from the case due to a procedural error. 27

28. 2. Recent Supreme Court Decisions The 9th Circuit held that a warrant should have been obtained prior to interviewing the girl. But, it granted the defendants qualified immunity because no clearly established law had warned them of the illegality. 28

29. 2. Recent Supreme Court Decisions The Supreme Court dismissed the 4th Amendment Claim as moot because the student had moved to Florida. It also held that, even though the investigator and police had technically “won” their case at the 9th Circuit on qualified immunity grounds, they could still appeal the 4th Amendment claim. 29

30. 2. Recent Supreme Court Decisions Takeaway: The 9th Circuit’s decision could have had a number of negative consequences for school districts that are avoided by the Supreme Court’s decision to vacate the opinion. For example: Districts feared that school officials could be liable for “seizing a student” by allowing access to a student on school property. Districts feared they would be stuck between “rock-and-a-hard-place” because many state statutes require reporting of suspected abuse. 30

31. 2. Recent Supreme Court Decisions C. Staub v. Proctor Hospital Issue: May an employer be held liable for employment discrimination when the final decision-maker is free from bias, but when the bias-motivated actions of a supervisor contributed to the decision? 31

32. 2. Recent Supreme Court Decisions The case involved the “Cat’s Paw” theory of liability Named for a 17th Century fable about a monkey who persuaded a cat to pull chestnuts out of a fire so the cat’s paw gets burned and the monkey gets the chestnuts. 32

33. 2. Recent Supreme Court Decisions The case involved a dispute about alleged military bias A technician at Proctor hospital was fired after many disputes with supervisors over absences caused by Army Reserve Duty. The hospital’s human resource director conducted an independent investigation, informed by input from the supervisors, and ultimately terminated the technician. 33

34. 2. Recent Supreme Court Decisions The technician sued, alleging a violation of a federal law prohibiting discrimination against members of the military. The technician’s primary argument was that the supervisors’ were biased against the military, and this bias influenced the human resource direct (i.e. a cat’s paw theory of liability). The hospital argued that even assuming cat’s paw liability is valid, an employer should not be held responsible when the ultimate decision-maker conducts an independent investigation and concludes that the supervisor’s actions were not motivated by bias. 34

35. 2. Recent Supreme Court Decisions The district court sided with the technician, finding that the cat’s paw theory was valid. A jury verdict was returned in favor of the technician. The Seventh Circuit reversed, holding that the cat’s paw theory of liability was not valid. 35

36. 2. Recent Supreme Court Decisions The Supreme Court held that the cat’s paw theory is valid if: (1) a supervisor of the worker took a bias-motivated step. (2) the supervisor acted with the intent to cause an adverse employment action for the worker. (3) the supervisor’s action was a proximate cause for the adverse employment action. 36

37. 2. Recent Supreme Court Decisions Takeaway: The NSBA had argued in an amicus brief that school districts are especially vulnerable to the cat’s paw theory of liability. E.g. Central office school administrators must rely on school-based administrators; school boards rely on school administrators Note, however, that a school district will not be liable if the biased-motivated step is too remote or a “purely contingent” cause of the adverse action (i.e., not the proximate cause). 37

38. 2. Recent Supreme Court Decisions D. Christian Legal Society v. Hastings Issue: Doesa school violate a student group’s rights to free speech and association when it refuses to grant official recognition to the group under the school’s nondiscrimination policy? 38

39. 2. Recent Supreme Court Decisions Hastings College of Law grants official recognition to a student group only when the group agrees to an “all-comers” nondiscrimination policy. Benefits of official recognition include money, use of school grounds, and more. Christian Legal Society bylaws require members to sign a “Statement of Faith” – including the belief that sexual activity may occur only in the context of marriage between a man and a woman. No one who engages in homosexual activity may be a member. 39

40. 2. Recent Supreme Court Decisions Hastings denied the Christian Legal Society official recognition under the nondiscrimination policy, but still allowed the Society to use the law school’s facilities. 40

41. 2. Recent Supreme Court Decisions The Supreme Court (5-4) upheld the law school’s nondiscrimination policy: The court concluded the law school was a “limited public forum” and the policy was reasonable and viewpoint neutral. 41

42. 2. Recent Supreme Court Decisions Key factors in the decision Deference to Hasting’s educational judgment and that policy meshed with its inclusive educational mission and program. All-comers policy was generally applicable, i.e., no choosing between belief systems. CLS had other alternatives to engage in free speech and association. 42

43. 2. Recent Supreme Court Decisions Takeaway The case supports the application of nondiscrimination policies that apply to all groups on the same basis, but this is a very fact-specific area and the type of forum is often determinative. For example, a classic “limited public forum” is created when schools open their doors to community groups after hours; arguably, a nondiscrimination policy for groups that only access the facilities afterhours is less relevant to a school’s mission. 43

44. 2. Recent Supreme Court Decisions E. Duryea, Pa. v. Guarnieri Issue: If a government employee complains to the government about a matter of purely personal (i.e. not public) concern, does the employee subsequently have a right to file a retaliation claim under the First Amendment? 44

45. 2. Recent Supreme Court Decisions Police chief in Duryea was fired by the Borough Council. Police chief filed a grievance and was reinstated with backpay. Upon return, the Council placed a number of restrictions on the police chief in carrying out his duties. Police chief filed a lawsuit, claiming that the restrictions were retaliation in violation of his First Amendment right to petition the government. 45

46. 2. Recent Supreme Court Decisions Both the district court and the Third Circuit held that the police chief could bring a retaliation lawsuit under the First Amendment. Both courts rejected the Council’s argument that the police chief’s grievance was a private dispute between him and the Council. The Council asserted that the First Amendment was only implicated if the speech underlying the police chief’s grievance was a matter of public concern. 46

47. 2. Recent Supreme Court Decisions The Supreme Court (8-1) overturned the lower courts. The holding was that public employees may only bring a retaliation claim under the First Amendment if the speech is related to a matter of public concern. 47

48. 2. Recent Supreme Court Decisions Key factors in the decision The Court reasoned that allowing a petition clause claim against the government for private employment disputes could seriously undermine the mission and effectiveness of government bodies, such as school districts. The Court also reasoned that public employees already have a number of legislative anti-retaliation protections. 48

49. 2. Recent Supreme Court Decisions Takeaway Under the Third Circuit’s decision, school employees would have received constitutional protection for private employment disputes. School employees already have “ample protections” against retaliation. 49

50. 2. Recent Supreme Court Decisions F. J.D.B v. North Carolina Issue: Should the age of a child be considered in determining whether he is in police custody for the purpose of informing a Miranda custody analysis? 50