Harassment/Discrimination
1. Fair Employment and Housing Act Does Not Impose Personal Liability for Harassment on Nonsupervisory Co-Workers.
The California Supreme Court recently held that the Fair Employment and Housing ACT (FEHA) does not impose liability for harassment on nonsupervisory co-workers.
Plaintiff, Maryann Carrisales, worked for the department of Corrections. She sued the department, two supervisors, and a co-worker for sexual harassment in violation of the FEHA. In holding that the co-worker could not be held liable under FEHA, the Court emphasized that the FEHA proscribed and provided remedies for unlawful employment practices and that harassment by a nonsupervisor was not an unlawful employment practice if the employer took immediate and appropriate corrective action when reasonably made aware of the conduct.
The Court explained that after analyzing the legislative history, it became apparent that the legislature wanted the courts to become involved only if the harassment was by a supervisor or it the employer failed to fulfill its statutory duty. However, the Court did not rule out the possibility that the co-worker could be liable under "some other statute or tort theory. Carrisales v. Department of Corrections.
2. Court Affirms Dismissal of Teacher's Title VII Race Discrimination Claim.
Charles Jones instituted an action against his former employer, the School District of Philadelphia, alleging race discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964. Jones, a science teacher, claimed he was unfairly transferred to different schools and passed up for a teaching position because he was African American. The District sought to justify its actions by pointing to numerous student and parent complaints about Jones and the documented fact that Jones was involved in a physical altercation with a student and, in one instance, threatened a class of disorderly students with a baseball bat.
The court affirmed the lower court's dismissal of the suit, finding that given Jones's negative history, the District should have been able to take adverse employment action against him without fearing a lawsuit. The court held that given the facts of the case, Jones presented no evidence from which a jury could conclude that the school district's reasons for its adverse employment actions were a pretext for discrimination. Moreover, pertaining to Jones's minimization of the baseball bat matter as "a minor classroom incident," the court wrote that "a school district can hardly tolerate comments from a teacher even to disruptive students that he will use a baseball bat on them."
Additionally, in dismissing Jones's retaliation claim, the Third Circuit held that the District's actions against Jones were in response to Jones's ongoing unacceptable conduct rather than because he filed a Title VII race discrimination complaint. Jones v. School District of Philadelphia.
Constitutional Rights
1. Public University Can Exclude Non-student Members of the Public From its Campus For Purposes of Protecting its Students.
The Ninth Circuit upheld a lower court's decision that public university officials did not act improperly when they prohibited a non-student from entering the campus grounds. The officials issued and enforced an exclusion order against a non-student, Robert Souders, after officials had received complaints from students about Souders stalking them.
Souders brought suit claiming that he could not be excluded from the university grounds because it was a public place, open to everyone. Souders claimed that his exclusion violated his constitutional right to use a public facility. The court, however, found that while the campus is open to the public, "it does not necessarily follow that the University must allow members of the public onto its premises regardless of their conduct."
The court explained that whatever rights Souders had to be on campus had to be balanced against the duty the University has to protect its students. In this case, the specific complaints about Souder's stalking activities clearly outweighed his rights to be on the campus. Souders v. Lucero.
2. School District Not Liable for Refusing to Provide Special Education Services on Site at an Eligible Child's Parochial School.
The Ninth Circuit found that a school district did not violate the constitution or the Individuals with Disabilities in Education Act (IDEA) by providing services to students at private schools but not at parochial schools. The eligible student here, KDM, is blind and has cerebral palsy. The State provided special education and related services to KDM in accordance with the IDEA when KDM attended school in the Reedport School District. KDM's parents then transferred KDM to the Harbor Baptists Church School. The District discontinued providing a vision specialist to KDM at her new school but provided one at the fire hall down the street. The District did so because of a state law requirement that the services be provided in a "religiously neutral" setting.
KDM's parents brought suit on behalf of their child, stating that the District's refusal to provide services at the school violated the child's constitutional right to equal protection and to freely exercise his religious beliefs, and that it violated the IDEA. The suit was based on the fact that the District provided services to students at other private schools.
The court, however, determined that the District was not liable. The court found no violation of the IDEA because the IDEA does not require that the special education and related services be provided on site at a private school. The court also determined that KDM's constitutional rights were not violated because KDM did not have to choose between practicing religion and receiving services. KDM was free to attend the parochial school and receive the special services at a convenient location. KDM v. Reedsport School District.
3. Supreme Court Agrees to Hear Prayer Case.
Delving once again into the knotty issue of prayer in the public schools, the Supreme Court will consider whether student initiated, student-led prayer at football games violates the First Amendment's Establishment Clause. The case before the court stems from a suit by two sets of parents and their children - one of them a Mormon family. The objectionable prayer took place at a school football game in Santa Fe, Texas, which has a large Baptist community. The student body chose the daughter of Baptist minister to give the prayer, which she did over the public address system before the start of the football game. The families that brought suit won at the lower court levels and the school district petitioned the Supreme Court, who will hear arguments some time in March, 2000.
4. Prop. 227 Provision Allowing Teachers to be Privately Sued for Refusing to Teach Non-English Speaking Children Only in English Held Constitutional.
A key provision of the controversial "English only" initiative provides in part that teachers, administrators and school board members who "willfully and repeatedly" refuse to provide students with an "English language educational option" may be held personally liable.
A group of plaintiffs, comprised of teachers, teacher organizations, and school administrator organizations, challenged this provision on the grounds that it is unconstitutionally vague and violates the due process clause of the Fourteenth Amendment.
The United States District Court first found that since a classroom is not a "public forum," school officials may regulate in-class speech so long as it meets "legitimate educational goals." The court wrote, "[b]ecause the provisions involve only classroom instruction and teachers do not have significant First Amendment rights inside the classroom, the Proposition need not meet the more stringent standard that would apply if it implicated First Amendment freedoms." Based on this finding the court then held that the language of the initiative is sufficiently clear.
The court also concluded that the Constitution's Due Process clause is not violated by failing to give teachers and administrators procedural safeguards against arbitrary and bad-faith lawsuits. "The statute leaves teachers in the same position as that of all other potential litigants.free to defend themselves against non-meritorious claims," the court wrote. California Teachers Associates v. Gray Davis.
5. University May Reduce Athletic Roster Spots Available to Men in Order to Achieve Title IX Compliance.
Title IX requires schools receiving federal funding to provide equal athletic opportunity to members of both sexes. Under the regulations, a university's athletics program may achieve compliance if participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments.
In a Ninth Circuit decision, the court held that CSU Bakersfield, a school where females comprised over 60% of the student population but less than 40% of the varsity athletic rosters, could come into compliance with the rule by reducing the size of their men's athletic teams.
This practice of decreasing the participation in men's athletics was challenged by members of the school's wrestling team on the basis that it constituted gender discrimination and violated the Equal Protection Clause.
The court disagreed, holding that a university may bring itself into Title IX compliance by either increasing athletic opportunities for the underrepresented gender, or by decreasing athletic opportunities for the overrepresented gender. It wrote, "[i]f a university wishes to comply with Title IX by leveling down programs instead of ratcheting them up, Title IX is not offended. Neal v. The Board of Trustees of the CSU.
6. Congress Exceeded its Authority in Allowing Federal Lawsuits Against States Under the ADEA.
The Age Discrimination and Employment Act (ADEA) contains clear language granting citizens the right to sue state agencies in federal court for basing an employment decision on an individual's age. However, the United States Supreme Court found that Congress, in drafting this provision, exceeded its congressional authority. Accordingly, the Court conversely held that public agencies may not be sued under the ADEA in federal court.
The Court argued that because the U.S. Constitution gives states the ability to discriminate on the basis of age so long as the age classification is rationally related to a legitimate state interest, that "substantive requirements the ADEA imposes on state and local governments are disproportionate to any unconstitutional conduct that conceivably could be targeted by the act."
What this decision means, is that for now, public schools are immune from suit under the ADEA. However, as the Court was quick to point out, this decision does not fully release state employers from age discrimination liability. State employees are still protected by state age discrimination statutes, which will allow them to recover money damages from their state employers. Kimel v. Florida Board of Regents.
On the heels of this decision, the U.S. Supreme Court has recently agreed to decide whether Congress similarly exceeded its authority when it made the Americans with Disabilities Act (ADA) applicable to state employers.
7. Public Employee Who Accepted Demotion in Lieu of Layoff was not Entitled to Pre-Deprivation Hearing.
Due to a budget reduction, the California Department of Insurance was forced to lay off several dozen of its employees. Plaintiff, a former employee of the Department, was targeted to lose his job, but was told that he could elect demotion in lieu of layoff. Plaintiff accepted the demotion. Plaintiff then appealed this action, arguing that the state had violated his right to due process by not providing him with a pre-layoff hearing at which he could challenge the layoff decision.
In upholding the demotion and defeating the plaintiff's due process claim, the California court of appeal sided with the government, finding that the balance of factors tipped in their favor. First, the court reasoned that as a result of the demotion, plaintiff was not deprived of employment and still retained a means of earning a living. Second, the court held that the layoff decision was the result of "a painstaking and detailed analysis of both the department's budget and personnel situation." Such an analysis, they reasoned, was likely to be adequate in protecting the plaintiff's individual interests. Lastly, the court held that the government, when confronted with a financial crisis, had a "compelling interest" in being able to act quickly to resolve "its financial woes." The court concluded that this government interest in taking immediate action outweighed the plaintiff's interest in a pre-deprivation hearing.
Disabilities
1. Disabled Student not Required to Exhaust Administrative Remedies Under IDEA Before Bringing Action Against School District.
At the time the complaint was filed, plaintiff was 10 years old and had been diagnosed with Tourette's Syndrome, asthma, attention deficit hyperactivity disorder, and emotional problems.
Due to his disabilities, plaintiff received special education and services from defendant Clark County School District, and was placed in an individualized placement program (IEP) pursuant to the Individuals with Disabilities Education Act (IDEA). When the student's mother learned that her son had been physically abused and humiliated by employees of the District, she took action. Through informal negotiation with the District in accordance with the IDEA, she obtained a new placement for her son in another school she found satisfactory. Later, she filed a complaint under the Rehabilitation Act and the Americans with Disabilities Act alleging physical abuse and humiliation against District employees, seeking only monetary damages. The district court dismissed the action on the ground that the plaintiff had failed to exhaust administrative remedies under the IDEA.
The court of appeals reversed this decision. It held that because plaintiff sought only monetary damages, which is relief not ordinarily available under the IDEA, and because all educational issues had been resolved to the parties' mutual satisfaction through the IEP process, that plaintiff was not seeking relief that was available under the IDEA. Accordingly, exhaustion of administrative remedies under the IDEA was not required. Witte v. Clark County School District.
Attorney General Opinions
1. Lockyer OK's Extension of Benefits to District's Personnel Commission Members.
In a recently published opinion, California Attorney General Bill Lockyer found no statutory prohibition against personnel commissioners of a school district receiving such health and welfare benefits as hospital, medical, surgical, disability, and group life insurance. His opinion reasoned that because such employees are considered "officers," the express terms of the law authorize them to be granted such benefits.
Accordingly, he concluded that in the instant case, a school district could extend health and welfare benefits to current members of the district's personnel commission.
2. Public Sector Self-Insured Employers may Purchase Special Excess Workers' Compensation Insurance.
In late January, Lockyer held that regardless of the qualification of Proposition 31 on the March 7, 2000 ballot, public sector self-insured employers may purchase special excess workers' compensation insurance policies effective January 1, 2000.
In 1999, the state Legislature enacted Chapter 721, which, in part, authorizes public sector employees who are self-insured to purchase excess workers' compensation insurance to discharge their continuing obligations as self-insurers. Normally no question would exist as to whether this new law became effective on January 1, 2000. However, a referendum petition was successfully circulated with respect to this chapter, designated as Proposition 31. California voters will vote to approve or disapprove Prop. 31 on March 7, 2000. The issue is whether or not the particular sections of Chapter 721 relating to public sector self-insured employers went into effect on January 1st, or whether its effect is postponed until after the March 7th vote.
Lockyer first identified, that if a referendum petition is filed against a statute, it will not go into effect unless and until the voters approve it.
However, he concluded held that because Prop. 31 specifically encompasses sections of Chapter 721 not pertaining to self-insured employers rights to purchase special excess workers compensation insurance, the effectiveness of these specifically excepted provisions, is not contingent on the March 7th vote.
In General
1. State Community College not Liable for Injuries Sustained by Students While Traveling to School-Sponsored Athletic Event.
Affirming the lower court's decision, the Sixth Appellate District recently held that a community college district and its employee-driver were entitled to statutory immunity from suit after soccer team members were injured in a car accident during a drive to an intercollegiate soccer match.
Plaintiffs were members of Cabrillo Community College's men's soccer team. While driving plaintiffs in a school-owned van to an away match in Fresno, the assistant coach lost control of the van when a tire blew out. The van overturned several times before coming to a stop, injuring several of the players.
Interpreting provisions of state law, the court found that while a school district may generally be liable for the actions of its employees, given the facts of this case, no liability should be found. The court wrote that Section 55450 of the California Code of Regulations specifically provides that a community college district may conduct "field trips or excursions" in connection with athletic activities, and that all persons on the excursion shall be deemed to have waived all claims against the district for injury occurring during the trip. The court reasoned that because the statute itself defines field trips or excursions to include those conducted in connection with school-related athletic activities, community college districts should be free from liability when students are injured while being transported to a school-sponsored athletic event. Barnhart v. Cabrillo Community College.
2. Statutes Prohibiting Surreptitious Videotaping in Classrooms did not Preclude School Authorities from Reviewing Recording During Course of Teacher Disciplinary Proceeding.
On May 7, 1999, two students in a science class secretly videotaped the class period in violation of Education Code rules prohibiting such conduct. The students delivered the tape to school authorities. The teacher and her union immediately contacted the school board and demanded that the district not view or rely on the tapes in the course of a disciplinary proceeding against the teacher. The district agreed not to review the tape pending judicial review of the teacher's rights.
The California Second District Court of Appeal concluded that while the Education Code provided for sanctions against violators of the rule, it did not specifically prohibit entities such as the district from using such recordings in disciplinary proceedings. Additionally, the court found that the 1967 Privacy Act did not act to prevent the tapes use as "a teacher must always anticipate public dissemination of his or her classroom activities. Evens v. Superior Court (Los Angeles Unified School District).
3. School District Found Negligent in Failing to Intervene in Teacher's Sexual Abuse of Student.
An Orange County judge upheld a $2.5-million jury award for a student sexually abused for years by a former high school science teacher. As well as blaming the teacher, the jury held the Anaheim Union High School District 35% liable for the abuse.
The district apparently assumed liability in the case because several teachers and a school principal had seen the abusive teacher with the student in his car, a clear violation of school policy, without reporting the incident. Additionally, on several occasions teachers had also seen the two leaving school grounds together.
The school district's portion of the total award amounts to almost $1 million for the student and $66, 500 for her parents. Additionally, should the teacher be unable to pay his share of the economic damages, the school district would have to cover that amount. Shanahan v. Los Angeles Unified School District.
4. Court Rules CSEA May Not Collect Fees From Nonmembers Without Verification.
This past month, a federal district court ruled that the California State Employees Association may not collect agency fees from nonmembers until it provides those fee payers the documentation on which the fees are based. In granting a preliminary injunction, the court held that the notices CSEA sent to nonmembers regarding the agency fees to be collected were inadequate since they lacked a copy of an auditor's report verifying the union's expenditures. The court found that because such notices are "intended to verify that the union spends agency fees only on collective bargaining activities," including in the notices a statement that an audit had been performed, with an offer to send a copy upon request, was insufficient. Cummings v. Connell.
5. Kindergartner Claims Teacher Forced Her to Lick Chalkboard.
In an ongoing investigation into an incident at a West Oakland elementary school, a 5-year-old student recently claims that a teacher forced her to lick a chalkboard as punishment. The student alleges that after she made a mark on the chalkboard, the teacher told her not to do it again. When she did, "He made me put my hands behind my back and made me lick the blackboard," the child said.
The teacher, whom district officials failed to identify, was suspended following a meeting between the child's godmother and administrators in late January, and currently faces the possibility of the district taking additional disciplinary action. Supporters of the child are calling on the Oakland Unified School District to fire both the teacher and principal, the latter due to the claimed inadequate reaction by the school to remedy the alleged incident. The family is also considering taking legal action to seek monetary damage against the school district.
TEACHER SALARY INCENTIVE FUNDING: IMPLEMENTING THE NEW PROGRAM
Overview of Program:
- The Jack O'Connell Beginning-Teacher Salary Incentive Program, described in Education Code Section 45023.4, provides incentive funding of $50 million to school districts and county offices of education that choose to increase the annual salary of their fully certificated teachers to not less than $32,000 in fiscal year 1999-00. This amount may be higher where necessary to fully expend in 1999-00 the incentive allowance received (see below).
- Program is discretionary, and funding is only provided as an incentive to raise teacher salaries.
Which Teachers Apply:
- "Fully certificated teachers" = Teachers must hold a baccalaureate degree or higher and receive a salary paid from the general fund. Teachers who have an emergency permit, intern permit or waiver or who do not otherwise meet the criteria, are not required to receive the minimum $32,000 and may not receive incentive fund money for that purpose.
How the Funding is Computed:
- Incentive funding based on an amount per average daily attendance (ADA) determined by dividing the $50 million appropriated by the prior year ADA for all school districts and county offices of education. What this works out to is a per ADA funding amount of $8.91.
How Money can be Used:
- Incentive funds must be used to pay for costs incurred in raising the salary of the lowest paid fully certificated teachers (to $32,000). Allowable costs include increases in salary and any related statutory expenses (STRS contributions, Medicare, employment costs, but not to pay for increases in health benefits even if tied to salary level.)
- If incentive funds are insufficient to pay the costs of increasing the salary of its teachers to $32,000, the district or county office must use other funds to cover the costs.
- If funds are used for other purposes than raising the salaries of the lowest paid teachers, then the district or county office will forfeit all incentive funds received.
Any Leftover Money:
- Education Code Section 45023.4 (b)(1) provides that if this salary change results in costs to the school district or county office of education that are less than the incentive received, the remainder shall be used to increase the beginning teacher salary by an amount that fully applies the incentive received. In other words, incentive funds received must be fully expended to increase the lowest salary, even if this results in a minimum salary that exceeds $32,000.
Salary Schedules:
- Newly adopted salary schedule must contain only one cell that is designated as the lowest salary of not less than $32,000 on the salary schedule for fully certificated teachers. All other salary schedule cells must exceed the designated lowest level.
- Note: Incentive funding may not be used to support salary increase beyond the level of the lowest cell established pursuant to this program. Should implementation result in multiple cells on the schedule, all at a level equaling the new lowest salary for a fully certificated teacher, the school district or county office must, from other funds, increase all but one of the cells to an amount which exceeds the new minimum salary.
Must Comply with Collective Bargaining Agreements:
- Reminder to meet and negotiate with collective bargaining representatives on the use of incentive funds to increase salaries and establishing salary schedule cells.
Application Form:
- Form districts and county offices use to apply for funding, or to decline participation in this program. Along with a certification by the district or county superintendent, this form is a prerequisite for receiving funding.
- Form must be received by office by 5/8/00 to receive funds in the current fiscal year.
- Not for use by charter schools.
Allocation of Funds:
- Eligible districts and county offices will receive incentive funding in one payment, no later than June 2000.
2000-01 Fiscal Year:
- In 2000-01, and successive fiscal years, the county office direct service and other purpose revenue limit (Ed Code Section 2550) or the school district revenue limit (Ed. Code Section 42238) will be increased by the incentive funding received pursuant to this incentive program in the 1900-00 fiscal year, increased by an amount necessary to compensate for the deficit factor calculated pursuant to Ed. Code sections 2558.45 and 42238.145.
- Adjustments of revenue limits will continue so long as the increase in the salary schedule made pursuant to this program is maintained.
- The adjustment will not be considered part of the base revenue limit for the purpose of computing equalization adjustments or determining wealth-related differences in school funding.
*article courtesy of Littler Mendelson.