Public Schools Newsletter - A Newsletter for Education Management

HIGHLIGHTS

IN THE COURTS

Schools may permit students to deliver prayers at graduation ceremony

Last May, a California court of appeals held that a public high school's policy of giving student commencement speakers unrestricted freedom to deliver pronouncements, including prayers, of their own choosing was constitutional.

The Madison School District of Rexberg, Idaho, instituted a policy whereby academically selected students could deliver "an address, poem, reading, song, musical presentation, prayer or any other pronouncement" at graduation ceremonies free from school censorship. A parent, on behalf of herself and her child, sued the district contending that this policy, by allowing students to invoke prayer in their speeches, violated the Establishment Clause of the First Amendment.

The court rejected the parent's constitutional challenge, finding that no per se rule against religious activity at public school graduation ceremonies exists. While courts have invalidated prayer at public school ceremonies where the school exerts significant control over the religious aspects of the event, the court found that the school was not exerting any control here. Rather, the school simply allowed the students with the highest academic achievements to select their own topics and formats when speaking at the ceremony.

The court found that the policy had a purely secular purpose.granting top students autonomy to deliver uncensored speech, and that the effect of the policy neither advanced nor inhibited religion since the topic of the speech was the student's own choice. Furthermore, the court held that a school would more likely become impermissibly entangled with religion if it attempted to keep out all religious content from graduation speeches, as this would involve the pre-censoring of speeches as well as the possible interruption of speaker's mid-presentation.

Doe v. Madison School District No. 321, May 28, 98 C.D.O.S. 4015.

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Question of whether racial quotas in schools are still necessary remains open

The Ninth Circuit refused to dismiss a case alleging unconstitutional enforcement of racial quotas at a San Francisco school.

In 1983, the San Francisco Unified School District (SFUSD) entered into a consent decree which established that no ethnic or racial group would constitute more than a specified percentage at certain SFUSD schools. The consent decree also set up a system to monitor these guidelines.

In 1994, three children, Brian Ho, Patrick Wong, and Hilary Chen, brought suit against the San Francisco Unified School District seeking an injunction to prevent the school from maintaining the quota system. They alleged that the school's actions constituted a violation of their Fourteenth Amendment rights by subjecting them to race-based classifications.

According to the school, race did not become part of the equation for placement in a particular school unless "the race of the student in as particular school will exceed 45% in the regular school or 40% in the alternative school". If this occurs, "another school is sought".

When parents registered their children for school, however, they were given a form and were required to check off one box of thirteen "racial/ethnic" categories. They were not permitted to refuse to provide this information. The court felt that this requirement "left no doubt about the School District's intent and effort to enforce racial classification and quotas".

The court determined that two issues would have to be resolved when the case goes to trial. First, whether or not the racism which justified the entry of the consent decree in 1982 was still in existence. Second, whether the racial quota system is necessary to eradicate such racism, if it still remains today.The court determined that two issues would have to be resolved when the case goes to trial. First, whether or not the racism which justified the entry of the consent decree in 1982 was still in existence. Second, whether the racial quota system is necessary to eradicate such racism, if it still remains today.

Ho v. San Francisco Unified School District, No. 97-15926 (9th Cir., June 4, 1998).

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Employees have no property or liberty interest in promotions not yet received

Three Los Angeles police officers, David Nunez, Alex Gomez, and Clyde Anthony Vlaskamp, took an examination administered as part of the process of being considered for a promotion to the position of lieutenant. In order to take the examination, officers must have at least one year of supervisory experience. Nunez, Gomez, and Vlaskamp had such experience, yet others who sat for the test did not. Some of the officers who did not have the requisite supervisorial experience received top scores on the examination and were promoted to lieutenant. Nunez, Gomez, and Vlaskamp, however, never received promotions.

Nunez, Gomez, and Vlaskamp brought suit against the Los Angeles Police Department under 42 U.S.C. Section 1983 alleging that they had a constitutionally protected property or liberty interest in promotion to a higher rank that had been violated by the LAPD when it promoted others who did not possess the requisite supervisory experience.

The court stated that although one's actual job as a tenured civil servant is property, promotions do not fall in the same category. In order for an individual to have a property interest, that individual must have more than "an abstract need or desire". The person must have "a legitimate claim of entitlement to it".

Here, when Nunez, Gomez, and Vlaskamp sat for the exam, they did not have an entitlement to a promotion. Whether or not they received a promotion was contingent upon their success on the examination as well as whether or not there were any lieutenant positions available. A person must actually receive a promotion or be informed he/she is being promoted before an actual property interest in that promotion arises.

The court also held that Nunez, Gomez, and Vlaskamp did not have a liberty interest. They claim that they were deprived of the right to engage in their chosen profession and the right to be free from arbitrary and capricious governmental action by the actions of the LAPD with respect to the promotion process. The court rejected both of these claims.

Nunez v. City of Los Angeles, No. 97-55139 (9th Cir., June 5, 1998).

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Speech which disrupts workplace may be proper basis for termination of public employee

The Ninth Circuit delivered another opinion defining the boundaries of the First Amendment rights of public employees, holding that disruptive speech is not necessarily protected.

In August 1993, Nickie Moran was hired as a Deputy Commissioner by Deborah Senn, the Washington State Insurance Commissioner. As one of her primary duties, Moran was responsible for developing and implementing an "outreach" program aimed at informing and educating citizens about insurance matters.

According to Senn, Moran insubordinately opposed the development and implementation of the outreach program. Moran believed that the program constituted "unlawful political activity" intended for "Senn's political gain," and, for that reason, "she continually resisted and refused to engage in" outreach activity.

On March 3, 1995, Senn dismissed Moran effective March 17, 1995. She cited a "clear difference in management philosophy" as the reason for Moran's termination. Moran then filed suit. She named both Senn and the State of Washington as defendants, claiming that both parties had violated her right to free speech protected by the First and Fourteenth Amendments.

The primary test for determining whether or not an employee's speech in the workplace is constitutionally protected is the Pickering test. To implement this test, courts must balance "the interests of the [employee] as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services that it performs through its employees."

In order to prevail, an employee must prove (1) that the conduct at issue was constitutionally protected . meaning that the employee is speaking about a matter of public concern, and the employee's interest in expressing herself outweighs the employer's interest in preventing potential workplace disruption, (2) the conduct was a substantial or motivating factor in her termination, and (3) the government would not have taken the same action even in the absence of the protected conduct.

In implementing the Pickering balancing test in this case, the court found that Moran's interest in expressing herself on matters of public concern did not outweigh the employer's interest in being free from workplace disruptions. The court stated: "Indeed, we are most doubtful that the Constitution ever protects the right of a public employee in a policymaking position to criticize her employer's policies or programs simply because she does not share her employer's legislative or administrative vision. . . . The First Amendment does not constitutionalize subordination."

Having failed the first prong of the test, Moran did not have any basis for relief so the court ruled in favor of the State.

Moran v. State of Washington, No. 96-36129 (9Th Cir., June 2, 1998).

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Previous jury award recanted for teacher who was fired for allowing students to use profanity in classroom

Cecelia Lacks was awarded $750,000 in damages by a jury for her claim that the school had violated the First Amendment and discriminated against her on the basis of her race when she was terminated. Lacks had been fired for allowing her students to use profanity in the classroom. The Eighth Circuit found that the school's decision to terminate Lacks was supported by substantial evidence, and, therefore, vacated the $750,000 award.

Lacks had begun teaching at Berkeley Senior High School in 1992. Her students wrote short plays that were then performed before the class and videotaped. Profanity was frequently used in these plays. The school terminated Lacks for this reason, stating that such conduct violated school policy. The Eighth Circuit found this argument valid and vacated the jury's award of damages.

A California Appellate Court ruled that the claim form itself was not protected by the exemption. The court further stated that there were no student privacy laws preventing the disclosure since the claim form was not an "educational record" or a "pupil record." As such, the court found that the newspaper had a right to the tort claim reports

BNA Daily Labor Report, June 30, 1998.

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Constitutionality of teacher's termination upheld

The Ninth Circuit Court of Appeals recently held that a school administrator's decision to fire a teacher did not violate any clearly established constitutional rights.

Plaintiff Arthur Brewster was an elementary school teacher with the Lynwood Unified School District of California. When he was fired only four months after starting the job, Brewster filed suit against the school board and individual school administrators alleging that his termination was in violation of his constitutionally protected rights of free speech and due process.

The school officials contend that they fired Brewster because he could not properly manage his classroom . which became apparent almost immediately after he began teaching. Brewster, on the other hand, believes that his firing was in retaliation for his work as a union grievance representative for the Teacher's Association and his allegations regarding what he believed to be a scam in the school office of falsifying attendance records.

The court denied Brewster's First Amendment claims, writing that public employees do not "enjoy.an 'absolute' freedom of speech." The court held that while the speech did involve a matter of public concern, the interests in the school in promoting the efficiency of its public services outweighed Brewster's interest in commenting on the matter. The court found significant the fact that Brewster's speech created disharmony within the school and possibly interfered with the fulfillment of his own office duties. The court concluded that, "[t]his is precisely the type of employment relationship with respect to which .'a wide degree of deference to the employer's judgment is appropriate,'" Additionally, the court ruled that since Brewster's speech was directed at a governmental colleague and not to the public or the media, this more limited scope necessarily was entitled to less constitutional protection.

In response to Brewster's allegation that his firing constituted a denial of his procedural due process, the court found that before termination "a plaintiff need only be accorded 'oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story."

Under these guidelines, the court held that the school adequately provided the plaintiff with notice and an opportunity to be heard before terminating his employment. The fact that Brewster was informed of the nature of the charges against him and given ample opportunity to respond, as well as being given the chance to present evidence on his own behalf all before his "final" termination, convinced the court that no due process rights had been violated.

Brewster v. Board of Education of the Lynwood Unified School District, July 13, 98 Daily Journal D.A.R. 7632.

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Teacher accused of sexual misconduct by student may be suspended without pay

Muin Mustafa, a teacher with the Clark County School District, was accused of sexual misconduct by one of his students. After this accusation, the school principal and the district administrator met with Mustafa and issued him a "Notice of Intended Disciplinary Action: Immediate Suspension and Dismissal." Mustafa's suspension without pay was effective immediately. He was informed by the principal and district administrator that termination would be recommended to the Clark County Board of School Trustees, but that he would be entitled to a hearing and that he would have the right to request binding arbitration following such hearing.

Mustafa received both a pre-termination hearing and an arbitration hearing. Following the arbitration hearing, the arbitrator ruled that the allegations against Mustafa were not supported by clear and convincing evidence. The arbitrator then ordered that Mustafa be reinstated with back pay.

After his reinstatement, Mustafa brought an action against the school district alleging, among other things, that the district violated his due process rights by depriving him of a property interest without a hearing when the district suspended him without pay. Repeating a Supreme Court ruling, the court stated that "the government does not have to give an employee charged with a felony a paid leave at taxpayer expense". Gilbert v. Homar, 117 S.Ct. 1807, 1813 (1997).

The court felt that his due process rights were protected by the fact that he was afforded a hearing five days after his suspension. The most important factor to examine in determining whether or not one's due process rights have been violated is whether the employer's decision could be considered "baseless or unwarranted". Here, the decision to suspend Mustafa without pay was supported by both a police report and a discussion with district officials. Thus, it was clearly not unwarranted.

Based on this determination, the court dismissed his due process claims, holding that the school had not violated his due process rights by suspending him without pay. A post-deprivation hearing was adequate protection given the seriousness of the charges against him.

Mustafa v. Clark County School District, No. 97-15745, September 22, 1998.

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School officials not entitled to immunity if they fail to stop known sexual harassment

An important decision from the Ninth Circuit Court of Appeals recently held that school officials were not entitled to immunity from a student's charge of failing to remedy sexual harassment.

Plaintiff, a sixth-grader in the Santa Rosa School District, filed an action against the District as well as the individual school officials, charging them with failing to remedy sexual harassment from both a student teacher and her male student classmates.

The minor alleged that she was "fondled, kissed, straddled and otherwise inappropriately touched" by her student teacher in October of 1992. The plaintiff's complaint further alleged that some of this improper teacher-student conduct actually took place in front of a teacher and the principal of the school. Additionally, the plaintiff alleged that she was continually harassed by the male students in her class who called her slang terms for whores and used derogatory language to refer to her body parts.

Under the law, a school official is immune from liability when he or she would "reasonably" not have known that the complained of conduct would violate a plaintiff's rights.

In denying their claims for immunity, the Ninth Circuit found that due to the existence of well-established and clearly-defined law forbidding the type of sexual harassment which the plaintiff complained about, the school officials here could not reasonably have been ignorant to the violation of the sixth-grader's rights.

In so holding, the court likened the duty of the school district to remedy sexual harassment to the similar duty of an employer. "'[W]hen a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor discriminates on the basis of sex.' We believe the same rule should apply when a teacher sexually harasses and abuses a student," wrote the court.

While upholding the district court's denial of immunity, the Ninth Circuit stressed the narrowness of its decision. The court opined, "[w]e do not consider what steps school officials may reasonably be required to take to address harassment by fellow students or when they are required to take them."

Oona v. McCaffrey et al., May 5, 98 Daily Journal D.A.R. 4657.

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School district not liable for Title IX damages in cases of teacher-student harassment unless school knows of teacher misconduct and fails to act

The Supreme Court of the United States recently held that school districts are not liable for incidents of teacher-student harassment unless an official of the school with the authority to correct such behavior is aware of the incident and fails to respond.

Alida Star Gebser was an eighth grade student at a middle school in Lago Vista Independent School District in the spring of 1991. At that time, she joined a high school book discussion group led by Frank Waldrop, a teacher at Lago Vista's High School. When Gebser entered high school in the fall, she took classes from Waldrop during both semesters. During class, Waldrop often made inappropriate remarks to his students, several of which were directed at Gebser. He initiated sexual contact with her in the spring. This contact escalated to sexual intercourse before the end of the school year.

Gebser did not report this relationship to the school officials. Although she realized that his conduct was not proper, she wanted to continue having Waldrop as a teacher. After the school discovered the relationship, Waldrop was arrested and the District fired him.

In Gebser's suit seeking damages for Waldrop's actions, the Supreme Court concluded that it would "'frustrate the purposes' of Title IX to permit a damages recovery against a school district for a teacher's sexual harassment of a student based on principles of respondeat superior or constructive notice, i.e. without actual notice to a school district official."

The Court's decision in this case does not affect any rights that an individual may have against a school district under state law or against the teacher individually under state civil law, state criminal law, or federal civil rights statutes. The decision merely holds that under federal law, in order to recover monetary damages from a school district, a claimant must show that someone with supervisory authority over the employee accused of misconduct actually knew of the incident, had the power to end it, and failed to do so.

Gebser v. Lago Vista Independent School District, No. 96-1866 (U.S. Supreme Court, June 22, 1998).

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Jury rejects teacher's sexual harassment claim

By a 10-2 vote, a Los Angeles jury rejected an instructor's claim that she had been sexually harassed by the school principal.

The plaintiff was a 53-year-old elementary school teacher with 28 years of experience in the Los Angeles Unified School District. She alleged that the school principal repeatedly came up from behind her in the school cafeteria to massage her back and shoulders; and that this conduct continued even after plaintiff had asked him to stop. Fearing continued harassment, the teacher no longer took lunch in the cafeteria, but instead locked herself in her fifth grade classroom during the break.

Additionally, the plaintiff also contended that the principal threatened her with a loss of her teaching credential unless she gave into his sexual advances.

Plaintiff filed suit against both the principal and the district on grounds of sexual harassment, retaliation, and wrongful termination in violation of public policy alleging emotional distress, insomnia, and losses of income and professional reputation.

In suing the school district as a co-defendant, the plaintiff argued that the district was liable for the conduct of its principal.

The defendants denied that they created a hostile work environment by sexually harassing the plaintiff, and furthermore, denied that they caused the teacher to suffer any damages. The principal and district also contended that the plaintiff failed to exhaust all of her required administrative remedies before bringing the lawsuit.

The jury's verdict for the defendants came after five days of trial and six hours of deliberation.

Jo Ann Bell v. Gary Domnitz; Los Angeles Unified School District, April 16, 1998, BC161764.

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School unable to assert statute of limitations as defense to molestation claim because school prevented student from pursuing her claim

Mona Lisa Ortega filed claims against Pajaro Valley Unified School District alleging sexual molestation by a teacher, Joseph Ancira. The applicable statute of limitations would have barred the claim except that the District was not allowed to assert the statute of limitations as a defense since the District prevented Ortega from pursuing the claims in the first place.

Courts will not allow a public entity to assert such a defense in situations in which agents or employees of the public entity dissuaded the individual from timely pursuing a claim. Specifically, the court held that the entity may not assert a statute of limitations defense in situations where there have been "misleading statements about the need for or advisability of a claim." The court further stated that "actual fraud or the intent to mislead is not essential".

With respect to the molestation claim of Mona Lisa, the evidence indicated that the school indeed dissuaded her pursuit of a timely claim. First, Ancira specifically threatened Mona Lisa, telling her that if she "disrespected" him, he would suspend her "so fast [she] wo[uld]n't know what hit [her]."

Second, school officials mistreated the Ortegas when Mona Lisa first reported the incident in February of 1987. They asked Mona Lisa if she might have misinterpreted what Ancira had done and they initially did not tell her parents that she had made such a complaint, but merely asked them to come to the school. When Mona Lisa's father wrote the school asking about Ancira's prior history, the school did not respond.

Additionally, Ancira's attorney, Chang, testified that he asked several teachers to call the sheriff's office and to give Ancira a positive character reference while giving Mona Lisa a negative reference. They were also asked to pressure the department into dropping its investigation of the incident.

The court found that the "totality of the circumstances" prevented the timely filing of a claim by Mona Lisa Ortega, but that she acted within a reasonable time after the effect of the misconduct had ceased.

The court further recognized that while a school district may not be held responsible for a teacher's sexual abuse of a child, the District is liable for its own conduct. Actions such as hiding evidence of prior acts of molestation or coercing a student to recant or delay filing a claim are actions for which the school itself could be held liable in the context of a molestation claim.

Accordingly, the Ortegas were allowed to pursue their claims against the District, even thought the statute of limitations had run.

Ortega v. Pajaro Valley Unified School District, No. H015564 (Cal. App. Ct., June 12, 1998).

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Dismissal hearing may be held after 60 days if both the teacher and district agree

Affirming the judgment of the district court, the California Court of Appeals held that if both the teacher and school district agree that the statutory 60-day requirement for commencing a dismissal hearing has been satisfied, the hearing may take place after the 60-day period has ended.

When Kern County high school teacher Charles Wilmot was informed of his imminent dismissal on grounds of dishonesty and unfitness for service, he requested a hearing on the matter before the Commission on Professional Competence. According to the law, the Commission was required to begin Wilmot's hearing within 60 days of his request.

Wilmot and the District, however, agreed to stipulate that the necessary 60-day statutory requirement had been observed. The court found that the dismissal hearing commencing after the 60 days was valid because both parties agreed to the stipulation.

The court rejected Wilmot's contention that the Commission's failure to hold the hearing within the 60 days rendered their decision to dismiss him invalid. The court pointed out that since the relevant statute also contained a provision allowing for continuances of hearings, it necessarily contemplated that sometimes a hearing may commence after the 60-day period following an employee's request. Furthermore, the court observed that because Wilmot's stipulation with the district occurred within the 60-day time frame, the stipulation satisfied the statutory requirement.

Wilmot v. Commission on Professional Competence, June 15, 98 C.D.O.S. 4617.

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State employees required to complain in writing to state personnel board prior to filing suit under state whistle-blowing statute

A state employee's whistle-blowing complaint for damages against his employer failed because the employee had not exhausted his administrative remedies by filing a complaint with the State Personnel Board before filing suit.

Ronald Hood field suit against Hacienda La Puente Unified School District under the whistle-blowing statute, California Government Code Section 8547.8. He sought damages on the theory that the school district had retaliated against him for disclosing improper governmental activity.

The court, however, concluded that his cause of action was barred because he failed to show that he had pursued the administrative prerequisite to commencing a lawsuit for damages. An action for damages for whistle-blowing is not available unless the party first files a complaint with the State Personnel Board. His suit was dismissed for his failure to pursue administrative remedies.

Hood v. Hacienda La Puente Unified School District, No. B108919 (Cal. App. Ct., July 6, 1998).

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Claims under Americans With Disabilities Act not barred by state court proceedings

In March 1993, the school board elected not to renew Johanna Thomas's contract. Thomas had been an elementary school teacher. She claims that her termination was the result of a voice disability characterized as "chronic laryngitis" which resulted from a throat surgery performed in 1989.

Thomas had already sued the school in state court for wrongful termination and lost. However, the First Circuit held that she could still bring a claim in federal court under the Americans With Disabilities Act. The court held that the state court had not specifically addressed the question of whether the school board's decision not to renew her contract was "motivated by discrimination on the basis of her voice disability". That proceeding only addressed the issue of whether there was "sufficient cause" for her termination. Therefore, she still had a viable claim under the ADA which could be pursued in federal court.

BNA Daily Labor Report, August 6, 1998.

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Disabled student sues District for reimbursement of cost of specialized private education

Isador Shapiro filed suit against Paradise Valley Unified School District seeking reimbursement of fees and expenses paid to enroll her at a specialized private school. Her complaint alleges that the District failed to provide her with a "free and appropriate public education" as required by the Individuals with Disabilities Education Act ("IDEA"). Isador has a hearing disability and she had attended private school for the past three years under a grant the school provided. The grant was not available, however, for the year at issue.

The district court ruled in her favor on her claim that the District had violated the IDEA, but remanded the proceedings to the administrative officer to determine whether the specialized private school provided an "appropriate" education. Shapiro will be allowed to appeal the decision of the administrative officer if she is not satisfied with the outcome.

Shapiro v. Paradise Valley Unified School District, Nos. 97-15814, 97-15875 (9th Cir., August 31, 1998).

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School district not liable for cheerleader's injuries

A high school cheerleader filed suit against Las Virgenes Unified School District alleging negligence after injuring her knee while performing a gymnastics stunt at team practice.

When sophomore Denning Aaris injured her right knee while carrying out a difficult cheerleading stunt called the "cradle," she sued the District claiming negligence. The court found no negligence by the District because Aaris had assumed the risk of possible injury, and furthermore, that the cheerleaders had all been given proper training in safety and technique and had been reasonably supervised.

The court stated that while they sympathized with any student injured while participating in a dangerous extracurricular activity, such activities remained voluntary. Even though the gymnastics stunt created a risk of harm, the court found that Aaris knew the stunt to be dangerous, and therefore, had assumed its risk by participating.

Furthermore, the court held that Aaris' negligence claim was barred by a waiver of liability that had been signed by the cheerleader's mother.

Aaris v. Las Virgenes Unified School District, June 15, 98 C.D.O.S. 4596.

Student alleges violation of civil rights against teacher who wrote on his eyelid

Parents of San Leandro student have filed a $1 million lawsuit claiming emotional distress, assault, slander, negligence, and racism. This suit stems out of an incident in which a teacher, Marilyn Fong, told their son, who was struggling with a handwriting exercise, to close his eyes. She then put a dot on each eyelid with a felt-tipped pen. This action was intended to remind him to dot his i's and cross his t's.

According to the complaint drafted by his attorney, Taylor Culver, during the incident Brancy White "felt acute apprehension while Fong projected a sharp, pointed object containing toxic chemicals and poked his eyes with it." Later, he "began having paranoia about toxic ink poisoning his eyes" and "had to be taken to the hospital to see a physician and a psychiatrist."

A letter of reprimand has been placed in Fong's file, but the school has rejected the Whites' administrative claim for damages. The School's attorney, Louis Leone of San Francisco's Stubbs, Hittig & Leone, said that Culver had provided no documentation evidencing that Brancy was traumatized by the incident or suffers any continuing medical condition as a result. "The big thing is to find out if the boy has been damaged or not so we can figure out what to do next," said Leone. "This whole thing has been exaggerated."

The Recorder, June 16, 1998, page 4.

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Court rules that hitting teacher with an apple is not felony assault

The 1st District Court of Appeal ruled that tossing an apple at a school wall, where it accidentally went a crack in a door and hit a teacher on the head, knocking her unconscious, did not constitute felony assault.

Presiding Justice J. Clinton Peterson stated: "As much as we . . . disapprove of throwing apples, we disapprove even more of finding people guilty of crimes they did not commit- an act which would strike even more directly at our core values."

Felony assault requires an intent to strike the victim. Here, the apple flew through the 12-inch gap in the door merely by chance. The student had thrown the apple because he wanted to see it splatter on the wall. After hearing from the student, his victim and other witnesses, Contra Costa County Superior Court Judge Mitchell Stevens found that he had not intended to hit the teacher. Despite this finding, Stevens found him guilty, wanting to send a message to the student's classmates.

The appeals court, however, found that while the student might be deserving of some sort of punishment from the school, he did not have the requisite intent to commit felony assault.

Daily Journal, August 25, 1998, page 2.

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School district cannot refuse to provide union with employees' home addresses and phone numbers

By refusing to provide the California School Employees Association (CSEA) with the home addresses and telephone numbers of the union members, the Bakersfield City School District violated the Educational Employment Relations Act. Refusal to provide this information violated the duty of the employer to bargain in good faith with the union as well as denying the union its right to represent its members.

In the past, the District had provided this information to the CSEA annually upon request. However, this time, the District surveyed the members before providing the information to the CSEA. The survey asked the members whether or not they wanted their home address and telephone number provided to CSEA. This survey altered the past practice with respect to this information and was held to constitute a unilateral change of policy by the District.

CSEA testified that having the employees' home addresses and telephone numbers was critical. They needed this information in order to survey employees regarding bargaining issues, to notify them of ratification votes, to check the status of employees who were on leave, and to communicate with members who might be laid off.

CSEA was not permitted to contact employees during work hours and it was often difficult to reach them at lunchtime. Therefore, CSEA could only communicate with most employees by phone in the evening and weekend hours. Additionally, since many employees do not work during the summer months, they do not receive any mail sent to them at the school during this time. Therefore, sending mail to their homes is the only way to ensure that they receive it.

Pursuant to the Board's finding of unfair labor practices, the District was ordered to cease and desist from its practices. The District, however, did not have to divulge the home addresses and telephone numbers of CSEA members who marked this information confidential on their survey. Union members have the right to keep such information confidential. Therefore, the Public Employees Relations Board could not order that such information be released to CSEA as this would be contrary to the wishes of the employees.

California School Employees Association v. Bakersfield City School District, Docket No. LA-CE-3691, April 28, 1998.

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Nonunion employees may bypass arbitration and bring suit in federal court

The Supreme Court denied review of a 9th Circuit case holding that nonunion employees are not required to exhaust union arbitration remedies before filing suit in federal court.

The plaintiffs in the 9th Circuit case were nonunion employees who were required to pay an agency fee for the benefits they received from the collective bargaining efforts of the union. However, such employees were only required to pay enough dues to cover the costs of the collective bargaining efforts, they were not required to fund the union's political or ideological campaigns.

The 9th Circuit held that these employees did not have to exhaust union-mandated arbitration before bringing suit in federal court because the nonunion employees did not agree to use arbitration as their sole remedy. Because they did not agree to this, they could not be bound by it. They were entitled to have their claim regarding the agency shop fee determined by the federal court. The holding of the 9th Circuit stands.

Knight v. Kenai Peninsula Borough School District, cert. denied, 118 S.Ct. 2060 (1998); 131 F.3d 807 (9th Cir. 1997).

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IN THE NEWS

California schools receive federal grant for extended-day programs

The U.S. Department of Education's 21st Century Community Learning Program gave out $40 million in new federal grants to 98 school systems across the country to establish extended-day programs for communities in need. Twelve California school districts and one charter academy were chosen from nearly 2,000 applications. Each school system will receive between $47,600 and $2.3 million each year in funds to be administered over three years.

The grants will be used to provide tutoring programs, drug and alcohol abuse prevention activities, supervised recreation, computer education, arts activities and family services at schools after hours, on Saturdays and in the summer.

Concurrent with the announcement of the grants, the U.S. Department of Education and U.S. Department of Justice released their report "Safe and Smart: Making After-School Hours Work for Kids," which presents research and examples of after-school activities to keep children safe, out of trouble, and learning. The report is available on-line at http://www.ed.gov/ or by calling 800-USA-LEARN.

These programs are designed to help combat problems resulting from lack of supervision. Adolescents who are unsupervised after school are more likely to use alcohol and other drugs according to recent studies by the American Academy of Pediatrics. Studies by the FBI and youth advocacy groups have found that the prime hours for juvenile crime and victimization are those hours when many children and teenagers are without adult supervision, the hours of 2 until 8 p.m.

EDCAL, Volume 28, No. 1, July 13, 1998, page 6.

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Wilson signs bill benefiting California schools

On August 19, 1998, California Governor Pete Wilson signed eight education-related bills as part of the new state budget package.

The longer school year bill increases the number of days students must be in school from 175 to 180. It also forbids districts from replacing school days with teacher training days. However, it provides for $195 million to pay for teacher training on other days.

Assembly Bill 1331 by Assemblywoman Elaine Alquist, D-Santa Clara, provides districts with money to train math teachers in grades four through twelve. Teachers will be trained in the new math standards approved by the state Board of Education last year, as well as any new tests the state develops. The second bill, AB 2442 by Assemblywoman Kerry Mazzoni, pays school districts to send math teachers back to college.

Governor Wilson approved $250 million to be used over the next three years for new textbooks, software and other materials that reflect the state's math, language arts, and science standards. $230 million has been allocated to the purchase of new library and science materials.

$50 million in funding will go to academic-focused after school programs for children in grades K-9. Programs that will receive assistance from the funding include homework help, tutoring and other recreational or educational activities. Additionally, schools in high poverty areas may qualify for $75,000 grants to allow them to stay open later in the day and into the evening or during the summer.

Wilson also signed a school safety bill that gives schools or school districts grants to develop "community policing" programs.

San Jose Mercury News, page 3B, August 20, 1998.

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Federal study on school bus safety recommends seat belts for children under 4

Federal highway safety officials have found large school buses to be one of the safest forms of transportation in the United States, with only 11 deaths of children in school bus crashes each year on average. A two-year, $1 million research project is being implemented in an effort to make these buses even safer. This study will examine school bus crash data and evaluate possible safety upgrades, including padding the sides and roofs of buses or adding padded arm seats.

Of all the safety measures examined, seat belts have received the most attention. Those who advocate the installation of seat belts argue that when there is a side-impact collision or a rollover collision, the padded seats do not help prevent injuries. NHTSA officials state that only about 20 percent of school bus deaths are in side-impact or rollover crashes.

Government officials are concerned, however, that lap seat belts will cause children to double over and hit their heads in accidents. They are also concerned about the difficulty of installing shoulder belts.

School bus deaths do not result from crashes alone. Approximately 25 children are killed each year while trying to get on or off the bus. About another 8,500 are injured each year. Of these, 350 suffer serious injuries.

By October NHTSA expects to complete guidelines recommending that new buses transporting children under 4 years of age contain seat belts or booster seats to secure the child. This would affect about 3 percent of the 23.5 million children who ride 440,000 school buses every day.

Sacramento Education Legislative Letter, page 4, August 24, 1998.

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Legal Blackboard

Gang Activity

Gang activity can be regulated at the school. To the extent that such activity creates unsafe or disruptive conditions for students, the school is legally required to respond. The response, however, must be based on specific factual evidence that the behavior (including clothing) creates the unsafe conditions.

School administrators may direct a person to leave campus if there is reasonable cause to believe that person (1) would be disruptive or interfere with school activities; or (2) has engaged in conduct or has come to school premises to engage in activities likely to interfere with peaceful activities.

School administrators may remove from a student's possession an object likely to injure another person and keep that object until the risk of its use as a weapon has dissipated.

Reasonable restrictions may be placed on student dress and speech if such restrictions are necessary for peaceful operation of the school. These restrictions may apply to the wearing of buttons, badges or other insignia if these items serve to incite students in such a way as to violate school regulations or to substantially disrupt school operations or to create a clear and present danger of the commission of unlawful acts on school premises.

An individual school may choose to include a reasonable dress code policy as part of its school safety plan if the governing board has adopted dress code regulations that prohibit students from wearing "gang-related apparel." The district's dress code policy may require students to wear a schoolwide uniform. Any schoolwide dress code is enforceable on campus and at any school-sponsored activity. Within the context of the school safety plan, "gang-related apparel" is not considered a protected form of speech.

Possession of a firearm or other weapon on school grounds without express written permission of school administrators is prohibited.

Visitors or "outsiders" may not be on school grounds without registering with the school administrator or his or her designee. The school administrator may refuse to register or revoke the registration of an outsider if there is reasonable evidence that the outsider's presence or conduct would disrupt school operation, damage property or result in the distribution of unlawful or controlled substances.

• Review and implement the school safety plan.
• Review and follow district and school policies on discipline.
• Review and follow district and school policies concerning visitors on campus.
• Post and maintain signs requiring visitor registration at entrances to school grounds.
• Monitor the behavior of campus visitors, whether registered or not.
• Review and implement school procedures for reporting disruptive behavior by outsiders.
• Record facts and circumstances that establish that an outsider's presence will be disruptive to school operations, damage property, or create a hazard to students or staff.

Education Code ' 35183, 35294, 35294.1, 48907, 49330, and 49334

Penal Code ' 626.6 and 627-627.10

Cal. Const., art. 1, ' 28(c)

Contributors: Clare N. Frank, Jennifer A. Lotz, Robert T. Owens, Patricia P. White.

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