A plethora of appellate decisions in the past year addressed school-related issues. At the United States Supreme Court, the 8th Circuit Court of Appeals, and the Minnesota appellate courts education was the context for many important decisions.
Unlike that of most tribunals, including those in Minnesota, the work of the United States Supreme Court has a discernible beginning, middle and end each year.
The High Court customarily begins its term on the first Monday in October, although it’s slated to start earlier this year, with a special hearing in early September of an important election campaign contribution case, Citizens United v. Federal Elections Commissioners, No. 08-205. The justices start to issue rulings late in the year and pick up steam after the beginning of the ensuing year, reaching a crescendo early in the summer, after which the Court finishes its caseload and takes its summer recess. The justices then engage in a variety of activities, including traveling, lecturing, teaching, reading, and resting up for the beginning of the next term. The upcoming term promises to be more keenly watched than some others because of the addition of Justice Sonya Sotomayor, the third woman and first Hispanic to sit on the tribunal.
While the upcoming term may attract increased attention, each annual session tends to take on a life of its own, often characterized by an underlying theme. For instance, the 2006-07 term was highlighted by an unusually high number of 5-4 split decisions, with about a third of its rulings decided by a single vote. Because Justice Anthony Kennedy was the swing vote in most of them, that term was called by some the “Year of Kennedy.”1 The following term, 2007-08, was characterized by a number of decisions favorable to employees. Other terms have had motifs of their own.2
This year, students took center stage. The Court decided four major educational cases during the past term, and three of the four outcomes were favorable to students. But decisions of the federal and state appellate courts in Minnesota during the same period reflected greater ambivalence and were not so favorable to student claimants. All three of the key 8th Circuit Court cases had a Minnesota flavor. Two came from here, and were written by Chief Judge James Loken of Minnesota.
Because of the large number and diverse education-centered topics of these cases, the past 12 months may be regarded as the “Year of the Student.” The start of the new school year, along with the return of the Supreme Court to the bench this month beginning the 2009-10 term, provides an opportune time to examine the educational epics of this epoch.
The rights and remedies of students harassed at school were addressed by the Court early in its term in Fitzgerald v. Barnstable School Committee, 129 S. Ct. 788 (Jan. 21, 2009). Parents of a kindergarten girl in Massachusetts claimed that a third-grade boy sexually harassed her regularly on the bus. They brought suit under Title IX of the Educational Amendments of 1972 and the Federal Civil Rights Act, 42 U.S.C. §1983, on grounds of a violation of the Equal Protection Clause of the 14th Amendment. The lower federal courts dismissed the §1983 charge, holding that claims of this type may be brought only under Title IX.
But the Supreme Court, in a unanimous decision written by Justice Samuel Alito, reversed and remanded. It held that Title IX is not an exclusive mechanism for addressing gender discrimination claims in schools and not a substitute for §1983 suits to enforce constitutional rights. While Title IX applies to institutions or programs that receive federal funds, suits under the Civil Rights Act, based on a claim of constitutional violations, “remain available to [students] alleging unconstitutional gender discrimination in schools.” The decision, therefore, gives students who are subject to discrimination and harassment two vehicles for redress: Title IX and §1983.
Another school bus brouhaha was resolved by the Minnesota Court of Appeals in J.W. on behalf of B.R.W. v. 287 Intermediate District et al., 761 N.W.2d 896 (Minn. App. 2009). The mother of a Bloomington student sued a pair of school districts and a bus company alleging sexual assault of her son on the school bus by a student with emotional problems. The two school districts were dismissed from the case, and the remaining claim against the private bus company was allowed to proceed by the Hennepin County District Court.
The court of appeals affirmed. It upheld dismissal of the school districts, holding that decisions not to disclose prior misbehavior by the assaulting student were discretionary and, therefore, protected by statutory immunity. But the immunity defense did not extend to the bus company for negligence for failing to control the wayward student, which was an “issue of foreseeability [that] presents a disputed issue of material facts” at trial.
But the 8th Circuit Court of Appeals took a less favorable view of student harassment rights in Plamp v. Mitchell School District No. 17-2, 565 F.3d. 450 (8th Cir. 2009). The case was brought by a female high school student in South Dakota under Title IX, claiming she was struck and harassed by a school teacher. As in Fitzgerald, the case was dismissed by the trial court.
The 8th Circuit affirmed. It held that the state law battery claim was not actionable against the school district because there was no evidence that “any appropriate” school official was aware of the teacher’s misbehavior. Although some colleagues had concerns about the teacher’s conduct, they lacked control over him or the authority to take any corrective measures. Thus, the school district could not be vicariously liable for battery.
The student’s other claim against the school district for harassment also was not viable because of insufficient evidence that school authorities knew of a continued pattern of wrongdoing by the teacher. Since the student did not show that relevant policymakers had knowledge of a continuing, widespread, persistent pattern of harassment, or that any of its harassment training procedures were inadequate, the claim could not be pursued.
A week before termination of its term, the Supreme Court concurrently issued a pair of high-profile decisions affecting students.
In Horne v. Flores, 129 S. Ct. 2579 (June 25, 2009), students and parents, who were not native English-language speakers, brought a class action against the state claiming failure under the Federal Equal Educational Opportunities Act, 20 U.S.C. §1703, to take appropriate measures to overcome language barriers in public schools. The trial court in Arizona ruled in favor of the parents and students, finding the state in contempt for not adequately funding programs for English as a second language, and the 9th Circuit affirmed.
The Supreme Court reversed, in another decision by Justice Alito. It ruled that the state had standing to challenge the determination and it remanded for further determination, pointedly noting the broad authority of state and local education institutions in carrying out their obligations under the act.
That dispute remains unresolved, as does the status of strip searching of students, which the Court condemned both in theory and in practice in Safford Unified School District No. 1 v. Redding, 129 S. Ct. 2633 (June 25, 2009). The case was brought by an 8th grade student, through her mother, claiming that the school district and school officials violated her 4th Amendment rights against unreasonable search by subjecting her to a strip search for contraband drugs.
Writing for the Court, Justice David Souter held that the search was impermissible because it was unduly intrusive, even though the authorities had reasonable grounds to suspect that the student was distributing drugs. While there was sufficient grounds to justify examining the student’s backpack and outer apparel, the strip search to her undergarments was “constitutionally unreasonable” because of the severe “degree of intrusion” imposed. However, in a split ruling, the Court held that the law regarding strip searches was not so “clearly established” at the time to deprive the school officials of qualified immunity against damages.3
The case was remanded to address the liability of the school district. The school officials were not liable because they did not violate “clearly established” constitutional rights.
Although the Court did not establish clear standards for engaging in a strip search, the affect of the ruling—and the prospect of damages, now that the law has been clarified—probably will be to deter administrators from engaging in such practices in most circumstances.
A few days before its term ended, the Supreme Court addressed another student-related issue: the right of parents to seek reimbursement of private school tuition for children who have been diagnosed with learning disabilities in public school settings. In Forest Grove School District v. T. A., 129 S. Ct. 2484 (June 22, 2009), the Court held that parents of a disabled student who did not receive appropriate special education services in the public school can be reimbursed for the cost of private school educational services under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400, et seq. While reimbursement is not required, the Court pointed to the fact that it must be taken into account, together with the quality of services furnished to the pupil and any notice given by the parents that they were taking the child out of public school for placement in a private educational institution.
Legal issues regarding students with special needs were also addressed in two decisions of the Minnesota appellate courts. In Independent School District No. 12 Centennial v. Minnesota Department of Education, 767 N.W.2d 478 (Minn. App. 2009), the Minnesota Court of Appeals held that IDEA authorizes school officials to determine whether a child’s individualized education plan should include assistance for extracurricular and nonacademic activities. The case was brought by parents of a 5th grader who complained about the program provided for the youth. The court held that the school need not provide extracurricular activities desired by a child’s parents unless there is a determination that a “nexus” exists between the activity and the educational needs of the student. The team involved in assessing the child’s needs has discretion to determine which accommodations are to be provided for extracurricular and nonacademic activities.
In another special education case, In the matter of J. H. v. Northfield Public School District No. 0669-01, 2009 WL 1182199 (Minn. App. May 5, 2009) (unpublished), the court of appeals held that a school district cannot conduct an evaluation of a student for special needs purposes if one parent refuses to provide written consent. The case was brought by the Northfield school district, seeking to perform an initial evaluation to determine whether a child was eligible for special education services under IDEA, after one of the child’s parent refused to consent to an initial evaluation required under the statute. Affirming an administrative law judge’s discussion of the issues, the appellate court held that the “plain language” of Minn. Stat. §125A.091, subd. 5(a) explicitly bars a school district from performing an evaluation in the absence of written consent by a parent for “an initial evaluation or re-evaluation.” Because IDEA defers to state law in matters of parental consent, the statute is valid and its explicit language forbids conducting an evaluation in the absence of parental approval.
In Look v. PACT Charter School, 763 N.W.2d 675 (Minn. App. 2009) the “plain language” of a statute dealing with charter schools was construed to proscribe an enrollment preference for students not located within the same “town” as a charter school they sought to attend. Parents of a student who wanted to attend a charter school in Ramsey sued for declaratory judgment that they met the school’s statutory enrollment preference under Minn. Stat. §124D.10, subd. 9, which requires a charter school to give special preference to students living in the “town” where the charter school is located if it is the only school there for pupils within a particular grade level. The statute, by its terms, did not apply in this case because Ramsey, where the school was located and the student lived, was a “city” rather than a “town.” Thus, the enrollment preference provision was inapplicable.
A battle over the distribution of Bibles to 5th grade students was addressed by the 8th Circuit in Roark v. South Iron R-1 School District, 2009 WL 2045683 (8th Cir. 2009). The lower court stayed religious groups from distributing Bibles to students on school property during the school day, which the 8th Circuit affirmed in a decision written by Chief Judge James Loken of Minnesota, with a concurring opinion by district court Judge Richard Kyle of Minnesota, sitting by designation.
The permanent injunction was not violative of the Establishment Clause of the 1st Amendment of the Constitution. Nor did it constitute an impermissible content-based restriction on the right of free speech.
The injunction against distribution of Bibles on school property once school was in session did not bar other ways “in which the school district may in a neutral manner facilitate Bible distribution by private parties, such as the distribution of flyers advertising off-campus or after school day distribution.”
A myriad of financial features characterized several other student law cases decided in the past year.
Medical students were dealt a defeat in Mayo Foundation for Medical Education and Research v. United States, 568 F.3d 675 (8th Cir. June 12, 2009). The question was whether stipends paid to medical students who participated in a graduate medical education program and provided care to patients at the Mayo Foundation–Rochester and the University of Minnesota are subject to withholding taxes or whether they qualify for the “student” exception under the Internal Revenue Code, 26 U.S.C. §3121(b)(10).
The ruling, written by Chief Judge Loken of Minnesota, noted that the issue has “exploded across the country.” Reversing the ruling of United States District Court Judge Richard Kyle, the court held that the IRS regulation that removes full-time employees from the “student” exception was a reasonable interpretation of the statute, which dates back to 1939. Because the IRS regulation barring those who work full-time and take care of patients from exemption “is a permissible interpretation of [the] statute,” taxes must be withheld.
A former student also suffered a setback from the 8th Circuit when he sought to discharge a student loan debt of more than $350,000 on grounds of “undue hardship” in Educational Credit Management Corp. v. Jesperson, 571 F.3d 775 (8th Cir. 2009). The former student, now a lawyer in Minnesota, was granted discharge of the obligation by the bankruptcy court, which decision was affirmed by Senior Judge David S. Doty. But the 8th Circuit, in a decision written again by Chief Judge Loken, reversed. The appellate court held that the “undue hardship” provision allowing a discharge was inapplicable on grounds that the former student had sufficient “monthly surplus” of income, permitting him to make the required payments of $629 per month on two loans, which he had not paid at all. The 43-year-old lawyer’s relatively young age, good health, educational credentials, marketable skills, lack of substantial obligations to dependents, and absence of mental and physical impairments all made him a “paradigmatic example … of no ‘undue hardship.’” The claimant’s position was not aided by his testimony at trial that, even if he had more money available on a monthly basis, he didn’t think he “should have to put that towards [the] student loans.”
Similar to the litigation over the taxable medical student stipends in the Mayo Foundation case, adversary proceedings seeking a discharge of student loan debts in bankruptcy, like the Jesperson case, are escalating. The United States Supreme Court will hear one of those cases in its upcoming term. In Espinosa v. United Student Aid Funds, Inc., No. 08-1134,553 F.3d 1193 (9th Cir. 2008) cert. granted129 S. Ct. 2791 (June 15, 2009), the Court will review a decision from the 9th Circuit, notorious for its high reversal rate, that barred collection activities on a student loan debt.
Students generally fared slightly better in seeking unemployment compensation benefits in Minnesota appellate court cases. Two pupils who were unwilling to end their schooling in order to accept employment were denied benefits on the grounds that they were not available for “suitable” employment, which is necessary to qualify for unemployment benefits under Minn. Stat. §268.085, subd. 1(4). In both McCoy v. Department of Employment and Economic Development, 2009 WL 1311956 (Minn. App. 2009) (unpublished) and Janzen v. Department of Employment and Economic Development, 2009 WL 1587123 (Minn. App. June 9, 2009) (unpublished), college students indicated on their applications for unemployment benefits that they were unwilling to leave school to take a job, but both subsequently recanted testimony during unemployment compensation hearings. The unemployment law judges held that their contradictory testimony did not overcome the original admissions and the appellate court affirmed both rulings of ineligibility.
But another college student managed to secure unemployment benefits in Biblenko v. Department of Employment and Economic Development, 2008 WL 4471102 (Minn. App. Oct. 7, 2008) (unpublished). In a rare reversal, the appellate court held that the student had not placed any limitation on his availability for employment while attending business school or that he had to stop school in order to obtain suitable employment.
Those rulings came shortly before a new measure went into effect regarding student availability for “suitable employment” under the statute. The new law, Minn. Stat. §268.085, subd. 15(2), states that to be “available for suitable employment” as required by statute, the student must be willing to discontinue classes that restrict accepting a job if the student is unwilling to make schedule modifications. Thus, under the new law, the student would have to be willing to change classes and make other scheduling modifications in order to be available for “suitable employment,” to be eligible for unemployment benefits.
Students need teachers, and teachers need jobs to have students. Both features were lacking in a pair of decisions of the Minnesota Court of Appeals denying continued employment to a pair of probationary teachers who asserted that they had tenure. Both cases involved some twists from the usual tenure tussles. In one case, the educator was not given three performance reviews, as required annually by the teacher tenure law, but the trial court nevertheless upheld the nonrenewal of the teacher’s contract. In the other matter, a teacher who taught for many years previously was not entitled to include those years for tenure purposes because of insufficient proof of licensure during that period.
In Tchida v. ISD No. 31, Bemidji Area Schools, 2009 WL 1919615 (Minn. App. July 7, 2009) (unpublished), the community education director in Bemidji, while on probationary status, received only one “real performance evaluation” and a couple of vague supplemental memoranda, which violated Minn. Stat. §122A.40, subd. 5(a), which requires three annual performance reviews for a probationary teacher. But the appellate court held that the statute was only “directory, not mandatory.” Therefore, the one performance evaluation, along with the two supplemental memoranda, constituted “substantial compliance” with the statute and warranted upholding nonrenewal of the teacher’s probationary contract.
In Wilson v. ISD No. 720, Shakopee, 2009 WL 1920051 (Minn. App. July 7, 2009) (unpublished), a teacher’s probationary contract was not renewed after the third year by the Shakopee School District. The teacher claimed that several years earlier she taught at a technical school (formerly governed by the school district for about four years) and argued that her service there should be counted to reach the minimum three-year tenure period under the teacher tenure law.
The appellate court disagreed. The teacher’s prior service does not count toward achieving tenure because there was no evidence that she was “required to be licensed while teaching at a technical college” within the school district. In the absence of proof of required licensure at that time, the claimant was not classified as “teacher” and could not count her prior pedagogy to meet the three-year tenure threshold.
The saga of these cases is mixed. Students won some and lost some. The abundance of cases involving students decided in the past year indicates that litigation regarding student rights is expanding. This is occurring on the 40th anniversary of the Supreme Court’s famous Tinker decision, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), in which the Court set aside disciplinary action against students who wore black arm bands to protest the Vietnam War.
The Tinker case yielded the oft-quoted phrase that students do not “shed their constitutional rights at the schoolhouse gate.”4 Four decades later, they are continuing to bring their claims to the gates of the courthouses in Minnesota and elsewhere.
1 That phenomenon was emulated this year, with 23 of the 75 cases decided by a 5-4 split, and Justice Kennedy was the decisive jurist in 18 of them.
2 See, e.g., M. Tanick, “The Year of the Arbitrator,” 58 Bench & Bar 10 (Nov. 2001), pp. 27-30.
3 The “clearly established” provision requirement for qualified immunity arises out of a number of Supreme Court decisions cited by Judge Souter in his decision. See, e.g., Pearson v. Callahan, 129 S. Ct. 808 (2009); Hope v. Pelzer, 536 U.S. 730 (2002); and Wilson v. Layne, 526 U.S 603 (1999).
4 The High Court’s decision in Tinker, incidentally, reversed the decision of the 8th Circuit Court of Appeals, which held that the 1st Amendment did not permit the nondisruptive protest by the students. 383 F.2d. 988 (8th Cir. 1967).
MARSHALL H. TANICK is an attorney with the law firm Mansfield, Tanick & Cohen, PA, in Minneapolis/St. Paul. He is certified as a Civil Trial Specialist by the Minnesota State Bar Association and represents parties in a variety of educational law matters, including administrators, teachers, students, and their parents.