by Ryan LaFlamme | May 6, 2020 | General, School Management
A
panel of the U.S. Court of Appeals for the Sixth Circuit issued a 2-1 decision
holding that the Fourteenth Amendment’s Due Process Clause protects a
fundamental right to a “basic minimum education” that is potentially
violated when the state fails to provide adequate public schools. The Sixth
Circuit has jurisdiction over Ohio, Michigan, Kentucky, and Tennessee.
Judge
Clay, who wrote the majority opinion, summarized the crux of the Plaintiff’s
case. The Plaintiffs are students at several of Detroit’s worst-performing public
schools. They credit this substandard performance to poor conditions within
their classrooms, including missing or unqualified teachers, physically
dangerous facilities, and inadequate books and materials. Taken together, the
Plaintiffs say these conditions deprive them of basic minimum education,
meaning one that provides a chance at foundational literacy.
In
2016, the Plaintiffs sued several Michigan state officials, who they say are
responsible for these abysmal conditions in their schools. Plaintiffs allege
that state actors are responsible, as opposed to local entities, based on the
state’s general supervision of all public education, and also on the state’s
specific interventions in Detroit’s public schools.
The
Plaintiffs’ claims are all based on the Due Process and Equal Protection
Clauses of the Fourteenth Amendment. Plaintiffs argue that while other Michigan
students receive an adequate education, the students in Plaintiffs’ schools do
not, amounting to a violation of their right to equal protection of the laws.
They also argue that the schools they are forced to attend are schools in name
only, and so the state cannot justify the restriction on their liberty imposed
by compulsory attendance. And in their most significant claim, Plaintiffs ask this
Court to recognize a fundamental right to basic minimum education, an issue the
Supreme Court has repeatedly discussed but never decided.
The
District Court found that the Defendants (various state officials including the
Governor, Members of the State Board of Education, the State Interim
Superintendent of Public Instruction, Director of the MI Dept of Technology,
and the State School Reform/Redesign Officer, in their official capacities)
were in fact the proper parties to sue, but it dismissed Plaintiffs’ complaint
on the merits.
First,
it found that the Plaintiffs had not alleged a proper comparator for their
equal protection claim, nor had they highlighted any state policy or action
that was not supported by a rational basis. Second, it found that the Plaintiffs
had not sufficiently pleaded their compulsory attendance theory, and so the
court only viewed their due process claim as seeking an affirmative fundamental
right. Third, the court held that basic minimum education is not a fundamental
right, and so Plaintiffs’ due process claim was dismissed. The plaintiffs then
appealed.
The
Sixth Circuit panel agreed that the Plaintiff’s equal protection and compulsory
education claims were not properly pleaded and were therefore rightfully
dismissed by the District Court. However, the panel agreed that the Plaintiffs
had “been denied basic minimum education, and thus have been deprived of access
to literacy.”
Judge
Clay, seeming to understand the gravity of declaring a new fundamental
constitutional right, wrote the following:
“The recognition of a fundamental right is no small matter. This is particularly true when the right in question is something that the state must affirmatively provide. But just as this Court should not supplant the state’s policy judgments with its own, neither can we shrink from our obligation to recognize a right when it is foundational to our system of self-governance.
Access to literacy is such a right. Its
ubiquitous presence and evolution through our history have led the American
people universally to expect it. And education—at least in the minimum form
discussed here—is essential to nearly every interaction between a citizen and
her government. Education has long been viewed as a great equalizer, giving all
children a chance to meet or outperform society’s expectations, even when faced
with substantial disparities in wealth and with past and ongoing racial
inequality.
Where, as Plaintiffs allege here, a group of children is relegated to a school system that does not provide even a plausible chance to attain literacy, we hold that the Constitution provides them with a remedy. Accordingly, while the current versions of Plaintiffs’ equal protection and compulsory attendance claims were appropriately dismissed, the district court erred in denying their central claim: that Plaintiffs have a fundamental right to basic minimum education, meaning one that can provide them with a foundational level of literacy.“
The
dissent argued that a holding such as this is beyond the court’s role and is
something best left to the Legislature and the citizens at-large. Judge Murphy
wrote in dissent: “The Due Process Clause has historically been viewed,
consistent with its plain text, as a negative limit on the states’ power to
“deprive” a person of “liberty” or “property.”
U.S. Const. amend. XIV, § 1. It has not been viewed as a positive command for
the states to protect liberty or provide property. A state’s decision “not
to subsidize the exercise of a fundamental right” has never been thought
to “infringe the right,” even in areas where the states have long
provided that assistance.”
Judge
Murphy also noted the practical difficulties with attempting to enforce a right
and its impact on the separation of powers issues. “How should those courts
remedy the schools that they conclude are not meeting the constitutionally
required quality benchmarks? May they compel states to raise their taxes to
generate the needed funds? Or order states to give parents vouchers so that
they may choose different schools? How old may textbooks be before they become
constitutionally outdated? What minimum amount of training must teachers
receive? Which HVAC systems must public schools use?”
The
U.S. Supreme Court has not expressly held that the U.S. Constitution provides a
fundamental right to basic minimum education. As the dissent noted, the Court
held in Plyler v. Doe, that [p]ublic education is not a ‘right’ granted to
individuals by the Constitution.” Accordingly, there is good reason to
speculate that this decision would not survive an appeal to the U.S. Supreme
Court. However, it is not certain where the case goes from here. The State
Attorney General could seek a re-hearing before the entire Sixth Circuit bench
(en banc). This may not occur as the Michigan Attorney General has already
praised the decision. It is also possible that the State Legislature may seek
to intervene and ask for a re-hearing. That request may have to go to the same
panel that made this decision. Finally, the Sixth Circuit could decide itself
(sua sponte) to re-hear the matter en banc.
We will, of course, keep you apprised of this matter as it progresses. While this case focuses on State officials, the next suit to enforce this new right could include local and County officials as well. This would put courts in the role of making independent judgments about the adequacy of all aspects of the educational services provided by schools in Ohio. This would be a significant break from the normal legal environment in which courts are reluctant to second guess the discretionary decisions of elected officials in the state, focusing instead on whether there are procedural violations to remedy.
Gary B., et al. v. Whitmer, et al 2:16-cv-13292
by Pamela Leist | May 5, 2020 | COVID-19 (Coronavirus), General, Labor and Employment, School Management
On
April 30th, 2020, the Ohio Department of Health Director, Dr. Amy Acton, issued
two revised orders that will impact school operations at least in the short
term. These orders will cover school operations through June 30th at a minimum.
It’s a wrap
– concluding school operations for 2019-2020.
The first order directs schools to remain
closed to students through June 30th, 2020. However, the Director clarifies
that the order does not prohibit administrators, teachers, staff, vendors, or
contractors from showing up for work. Rather, administrators are tasked with
determining who will have access to the buildings and are encouraged to promote
practices such as social distancing and frequent hand washing. The order
encourages administrators to consider remote work options when possible.
The
order also specifically excludes a number of activities and events that may
occur at schools, such as voting, food services, health services, and
charitable works, as well as “targeted” and other educational programs and
activities. While schools have the discretion to determine what types of
programs and services may be provided, it should do so with caution and only
after consulting with the local health department and legal counsel. Further, a
school district must obtain written approval from the local department of
health before the activities may be held and then must submit a copy of the
written approval to both the Ohio Department of Health and the Ohio Department
of Education.
Schools
are expected to follow the social distancing guidelines published by the Ohio
Department of Health while conducting activities. Local law enforcement and
other officials who are tasked with enforcing the order are also directed and
encouraged to contact local health departments with questions and for opinions
about implementation.
Because
there are many practical and legal implications as you determine what
operations will resume, it is very important to consult with your
administrators, local health departments, and legal counsel as you make plans. Click here to review the order.
Business
as Usual? Not so fast!
The second order, which will remain in effect
through May 29th, 2020, addresses how residents and the majority of businesses
will operate during much of May. The stay-at-home requirement remains for
residents, although they are permitted to engage in business activities
authorized by the order. Individuals who are returning to the state are
encouraged to self-quarantine for fourteen days.
The
order allows most businesses to resume operations as long as they meet
workplace safety standards. These standards changed several times, but as of
May 1st included the following:
- Employees
must wear face masks or “face coverings” at all times unless an exception
applies; it is recommended that visitors do as well.
- Employers
and employees will conduct daily health assessments to determine if someone is
“fit for duty.”
- Employees
who report for work will maintain social distancing (people will stay 6 feet
apart) and will also sanitize and wash hands regularly.
- Worksites
will be cleaned throughout the workday (for high touch surfaces), as well as at
the close of each day or between shifts.
- To
meet social distancing guidelines, buildings will limit the number of visitors
and employees to 50% of the building capacity established by the fire code.
There
are specific rules about face coverings and masks, including when employees are
not required to wear them in the workplace. The exceptions include the
following:
- Masks/coverings
are prohibited by law or regulation.
- Masks/coverings
are in violation of a documented industry standard.
- Masks/coverings
are not “advisable” for health reasons.
- Masks/coverings
violate a business’s documented safety policy.
- Employees
are working alone in an area and coverings are therefore not necessary.
- There
is a practical/functional reason why an employee should not wear a covering or
mask.
At
a minimum, facial masks or coverings should be made of cloth and should cover
an individual’s mouth, nose, and chin. An employer must be able to provide
written justification for any exception if requested to do so.
Employers
are expected to “immediately report” when any employee is diagnosed with COVID-19
and will work with the local department to identify others who may have been
exposed. They are also expected to send employees home when they show signs of
the illness. When possible, a building site will be closed until it can be
professionally cleaned. Buildings may be reopened in consultation with the
local health department.
Paragraph
20 of the order contains a more specific list of steps that businesses are
expected to comply with as operations resume, broken down by type of business.
The order specifies requirements for manufacturing, construction, consumer
retail and services, and general office environment. Of course, schools are
governed by the separate order summarized above.
Finally,
the order includes a list of businesses that must remain closed for the time
being, including schools (at least as to student attendance), most childcare
services, beauty salons, entertainment and recreation facilities, and
restaurants/bars. These businesses may only engage in minimum basic operations
as defined by the businesses.
Click here to review the order.
Possible
Challenge to Orders Being Proposed in the House
State Rep. John Becker
of Clermont County plans to introduce a bill that would repeal the current
health orders, and make any future orders issued by the Director of Health
advisory unless and until those orders are approved by the General Assembly.
The bill would focus on speeding up Ohio’s return to normal business
operations. Stay tuned for more information about this and other efforts to change
the state’s direction.
We Can Help!
Many challenges and opportunities continue to present themselves during this pandemic – it is critical that you rely on credible sources of information to remain up-to-date. It is also important for you to consider your district’s specific needs as you develop plans, and remember that there is no “one size fits all” approach. Make sure you discuss your details and situation with legal counsel to determine how you can effectively implement these and other orders that arise.
by Ryan LaFlamme | Apr 16, 2020 | General, School Management
In two recent cases, a court of appeals has upheld political subdivision immunity in favor of school boards who have been sued by students and/or their parents.
In the first case, decided on March 26, 2020, the Court of Appeals for the Tenth District found in favor of the school board when the board requested the case be dismissed on immunity grounds. The case involved claims that, during the school’s annual class rocket launch, one of the rockets veered off course and struck appellant on her right lower leg, causing burns and scarring. The complaint further alleged that the teacher who supervised the launch failed to take proper precautions in launching the rocket. Additionally, alleged the school board permitted an unsafe environment and failed to require proper instruction. The court rejected the plaintiff’s argument that the accident was due to a physical defect on the grounds or buildings owned by the school district, therefore destroying the Board’s asserted immunity defense. The Court found that the rocket failure did not result from a physical defect on the grounds or buildings of the school district, and further, that the teacher exercised judgment and discretion in conducting the experiment. The Court opined that so long as the teacher did not act in a wanton or reckless manner, the teacher and the Board were immune from liability. An individual is deemed to act wantonly if that person acts without consideration of possible harmful consequences. A person who is reckless is aware that one’s conduct creates an unreasonable risk of physical harm to another, and proceeds anyway.
In a separate Tenth District case, also decided on March 26, 2020, the court upheld the immunity defense for a school board and its athletic staff after a sixteen-year-old student-athlete drowned while on a team basketball summer beach trip to Fripp Island. Here, the Court found that immunity “extends to most school activities and administrative functions of the educational process, even if not directly comprising part of the classroom teaching process.” The trip was organized by the head varsity basketball coach, whose job description indicates that the position is a year-round assignment, and the trip counted toward the number of days that the coach is permitted to provide organized basketball instruction to the team, per the Ohio High School Athletic Association (“OHSAA”) guidelines. The connection of the outing to functions of the educational process was considered by the court. The athletic director, the principal, and the superintendent were aware of and approved the Fripp Island trip. The school district provided a vehicle to transport players, the team members wore their school practice uniforms while they participated in practice, and participated in scrimmages against other teams during the five days of the trip. Similarly, the Court found that the coach and staff did not act in a reckless or wanton manner and thus were immune from liability in the exercise of discretion and judgment that are part of their job duties.
These cases emphasize that Ohio courts will recognize and enforce the immunity defense when properly applied and in the absence of wanton, reckless, or otherwise irresponsible actions on the part of district staff. The extension of this coverage to activities often seen as outside the scope of the educational process enlarges staff protections in its many areas of student supervision.
Douglas v. Columbus City Schools Bd. of Edn., 2020-Ohio-1133
Michael v. Worthington City School Dist., 2020-Ohio-1134
by Robert McBride | Mar 26, 2020 | Labor and Employment, School Finance, School Management, Unemployment
Many public employers are considering staffing adjustments in light of the coronavirus and its impact on available work. For those employees not covered under contracts that must be paid in the case of an “epidemic or other public calamity” pursuant to RC 3319.08(B) and 3319.081(G), layoffs are being contemplated. In order to have all the information on the financial impact of such a decision, the public employer should consider whether it is a “contributory employer” or a “reimbursing employer.”
Generally speaking, public employers are reimbursing employers. Essentially, reimbursing employers are self-insured and will be billed dollar-for-dollar by the Ohio Department of Jobs and Family Services for claims paid. Public entity employers who have elected to become a contributory employer have paid unemployment tax. Contributory employers will have their claims mutualized with other employers in the state and will not have to reimburse on a dollar-for-dollar basis. Determining if the public entity is a contributory employer or a reimbursing employer will be necessary to determine how much will be saved via staffing reductions.
The Coronavirus Aid, Relief, and
Economic Security Act (the CARES Act) provides that reimbursing employers may
be reimbursed for one-half of the amounts paid into a state unemployment trust
fund between March 13, 2020, and December 31, 2020.
If you have any questions regarding unemployment compensation issues, please reach out to any of the Ennis Britton lawyers.
by Giselle Spencer | Mar 9, 2020 | General, School Management
Last week, U. S.
Secretary of Education Betsy DeVos announced plans for a new compliance review
and data collection initiative to address the rise in sexual assaults in K-12
education, this time targeting the actions of adult employees toward school
students. Among other things, the new
initiative will implement provisions to prohibit public schools from
reassigning employees accused of sexual assaults against students.
Asserting that “No
parent should have to think twice about their child’s safety while on school
grounds,” DeVos directed the Office for Civil Rights to lead the initiative to
examine sexual assault through several avenues, including the following:
- OCR will focus on raising public awareness of the issue of sexual assault in K-12 schools, including making information on the issue available to educators, school leaders, and families.
- OCR will conduct nationwide compliance reviews to examine how sexual assault allegations are handled under Title IX, with special emphasis on sexual incidents involving teachers and school staff. It will then become OCR’s job to work with districts to correct any compliance concerns.
- OCR will conduct Data Quality Reviews (DQRs) of the sexual offenses data including sexual assaults, as submitted by school districts through the Civil Rights Data Collection (CRDC). In doing so, OCR will partner with the National Center for Education Statistics (NCES) and support districts in accurately recording and reporting incidents of sexual assault/sexual offenses through the CRDC.
- For the 2019-2020 data collection, OCR has proposed collecting more detailed data on sexual assault. The proposed data collection includes incidents perpetrated by school staff or school personnel. If adopted, the inclusion of this data would make the CRDC collection the first universal collection to gather such data systemically for individual schools.
This is the second
nationwide initiative announced by the OCR within the last 13 months. The present announcement comes in the wake of
OCR’s recent resolution of two sexual harassment complaints involving Chicago
Public Schools. However, Secretary DeVos insists the issue is widespread,
stating “We hear too often about innocent children being sexually assaulted by
an adult at school.” Her declaration is
supported by 2015-2016 CRDC reports recording more than 9,700 incidents of
sexual assault, rape or attempted rape in public elementary and secondary
schools. The Agency additionally reports
the problem is “fifteen times greater than a decade ago.” The reporting as
referenced does not break down the number of adults directly involved in such
allegations but relate to a companion announcement by the Office of Elementary
and Secondary Education that it will publish an extensive study on state and
local measures to prevent the “pass the trash” phenomenon in dealing with
adults accused of sexual offenses against students.
by Pamela Leist | Feb 3, 2020 | General, Legislation, School Finance, School Management
Efforts to curb the impact of EdChoice accelerated towards the end of January as legislators in the Senate and House searched for ways to reduce the negative financial impact that the program is anticipated to have on Ohio’s public schools starting next year. Legislators and the governor approved language in last year’s budget bill which was designed to dramatically increase the number of students eligible for the scholarships by more than doubling the number of eligible buildings. Prior to the program expansion, EdChoice was available in 31 school districts and 255 schools. After the expansion, EdChoice eligibility would have extended to at least 426 school districts and 1,227 schools.
Lobbying efforts and contacts from districts to their legislators and to House and Senate committee members to reduce the impact of the changes resulted in the last-minute action to delay implementation of the changes. The 2020-2021 application window for EdChoice would have opened on February 1st, of this year; now, the program application is delayed to April 1st. The House and Senate are expected to review the EdChoice program expansion in the next two months and hopefully will develop amendments to the budget expansion which will better support Ohio’s public school system.
The House initially proposed changes to EdChoice through HB 9. With a deadline of February 1st (the start of the applications of EdChoice scholarships) looming, the Senate passed alternative language late in the evening on January 29th. The Senate’s plan would have reduced the number of school buildings eligible under the traditional EdChoice program, but would also have increased the number of families eligible for the EdChoice expansion program by changing eligibility from 200% to 300% of the federal poverty guidelines for the income-based vouchers.
The bill was sent back to the House, which rejected the changes, and a conference committee convened. The House elected instead to pass House Bill 120, including language delaying the EdChoice application window until April 1st. HB 120 also contained separate provisions that authorize the auditor’s office to conduct performance audits of all state institutions of higher education and also modified requirements for College Credit Plus informational sessions. The bill included an appropriation of $10 million to help fund the EdChoice program. The Senate passed HB 120 on January 31st and the governor signed the bill the same day. The bill is considered an emergency measure and is effective immediately. This move buys the legislature more time to develop a plan that both houses are willing to pass.
February 3rd, 2020 Update: A group of families and private schools filed a lawsuit in the Ohio Supreme Court challenging House Bill 120 changes to EdChoice. The lawsuit alleges that the legislature failed to properly execute an emergency measure and therefore HB 120 should not go into effect for 90 days. The parties also claim that the HB 120 application delay will cause irreparable harm to new EdChoice eligible students who planned to apply for the scholarship. If successful, the state may be forced to accept applications starting February 1st.
We will keep you posted on developments. The education associations have sent out multiple calls of action on the bills and you are encouraged to continue to stay apprised of developments and let your legislators know how the expansion would affect your district.
