Recent Court and Agency Decisions
General Interest to School Officials
Anti-Bullying Policies, Tort Immunity Act
Castillo v. Board of Educ. of the City of Chicago, 2018 IL App (1st) 171053 (4-24-18).
Student Elizabeth Castillo (Castillo) and her family sued the district after Castillo was physically attacked by another student, Estrella Martinez (Martinez) off-campus. Castillo alleged that the district: 1) failed to discipline Martinez for her on-campus harassment of Castillo, in violation of the School Code’s bullying prevention statute, and 2) failed to prevent Martinez’s off-campus attack when it should have taken “supervisory” actions, such as calling Castillo’s parents or the police, or allowing Castillo to remain at school to avoid Martinez.
Castillo’s failure to discipline claim involved Section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act, 745 ILCS 10-2-201), which applies to public employees performing discretionary functions. The Court noted that the School Code’s bullying prevention statute “only mandates that every school district create a policy on bullying; it does not mandate that a school respond to a particular instance of bullying in a particular way.” Because implementation of the district’s anti-bullying policy required both discretion and decision making by school officials, the Court found that the district was immune under Section 2-201 of the Tort Immunity Act.
Castillo’s failure to prevent claim involved Section 4-201 of the Tort Immunity Act (745 ILCS 10/4-201), which provides that neither a public entity nor its employees are liable for failure to provide police protection service. Illinois courts have repeatedly held that school officials are immune from suit when a student is harmed off-campus, even if school officials knew that violence was likely. Castillo attempted to distinguish her case by arguing she did not allege the district should have acted in the role of police to prevent Martinez’s attack, but that it should have protected her through “supervisory” actions. The Court did not buy this argument, stating there is no case distinguishing Castillo’s suggested actions as “supervisory” instead of “police,” and that the “supervisory” actions Castillo suggested could “inevitably slide into the area of school discipline,” which is covered by Section 2-201 immunity.
Age Discrimination in Employment Act
Kleber v. CareFusion Corporation, 2018 WL 1959662 (7th Cir. 2018)
In 2014, Dale Kleber, an experienced attorney, applied for a senior counsel position with CareFusion Corporation, a healthcare company. The job posting for the position stated that applicant must have “3 to 7 years (no more than 7 years) of relevant legal experience.” Despite being otherwise well-qualified, Mr. Kleber was not selected for an interview, and the company eventually filled the position with a 29-year-old applicant. He filed an EEOC charge and subsequently, a federal lawsuit, against CareFusion, claiming that the company’s use of a hard cap for years of experience violated the Age Discrimination in Employment Act (ADEA) because it had a disparate impact on qualified applicants over the age of 40. CareFusion claimed the lawsuit should be dismissed because the language of the disparate impact provision of the ADEA refers to “employees,” but not specifically to “applicants.” The Seventh Circuit denied CareFusion’s motion to dismiss the ADEA claim, finding that the ADEA language and overall legislative purpose of the ADEA were broad enough to cover Mr. Kleber’s claim. The disparate provision of the ADEA states that it is unlawful for an employer to “limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” Specifically, the court found that the maximum experience requirement in CareFusion’s job posting was a classification that that deprived or tended to deprive Mr. Kleber from having status as an employee at the company, because of his age. In light of this decision, school districts, as employers covered by the ADEA, should evaluate their hiring practices to determine if they will have a disparate impact on applicants over the age of 40. If such an adverse impact exists, the practice is only permissible under the ADEA if it is justified by a “reasonable factor other than age.” 26 C.F.R. 1625.7. Consult the board attorney for advice on specific practices.
First Amendment Establishment Clause
Freedom from Religion Foundation v. Concord Community Schools, 885 F.3d 1038 (7th Cir. 2018)
In 2015, the Freedom from Religion Foundation brought suit against Concord Community Schools, claiming that its annual “Christmas Spectacular” holiday show, in which hundreds of students participated, violated the First Amendment’s Establishment clause. Originally, the first half of the show consisted of non-religious pieces, but the second half of the show contained a 30-minute segment called the “Story of Christmas,” which included religious songs, the reading of New Testament passages, and student actors who posed for a nativity scene. At the lower district court level, Concord volunteered to make two changes to the program, including removing the scriptural reading from the nativity scene and adding a Hanukah and Kwanzaa song at the beginning of the second half of the show. The lower court did not find these proposed edits to be adequate, and enjoined Concord from performing the proposed version of the show. After that ruling, Concord again modified the second half of the show. Specifically, the first 10 minutes of the second half was spent explaining and performing a song for Hanukah and another song for Kwanzaa. For the remaining 20 minutes, students performed Christmas songs that were more religious in nature. During one of the songs, a nativity scene appeared on stage for two minutes, but mannequins instead of student actors were used for posing, and there were no scriptural readings. The Freedom from Religion Foundation challenged this latest version, but the Seventh Circuit found that the show had been changed enough such that it no longer violated the Establishment Clause. First, the court noted that the religious nature of the nativity scene and songs did not come off as an endorsement of religion because they only made up a fraction of the Spectacular, and the first half of the show was secular in nature. Second, the court found that there was no religious coercion in the performance; there was no prayer or distribution of religious literature, and the show was performed in a school auditorium rather than a church or other sanctuary. Finally, the court held the Spectacular did not have an unlawful religious purpose because its primary purposes were to provide opportunities for performing arts students and entertainment at a winter concert. The court acknowledged this was a close case, but considering the entire context, the show was able to pass constitutional muster.
Pregnancy Discrimination and the Illinois Nursing Mothers in the Workplace Act
Sarah Spriesch v. City of Chicago, 2017 WL 4864913 (N.D.Ill. 2017)
Sarah Spriesch worked as a fire department paramedic for the City of Chicago. In the summer of 2014, she informed her supervisor that she was pregnant, and she was immediately forced to go on leave for the rest of her pregnancy. She returned to work two months after giving birth and requested accommodations so that she could pump and express breastmilk at work. The City did not consistently allow Ms. Spriesch to take breaks to pump, nor did it provide her with regular access to a private, non-bathroom space in which she could pump and express breastmilk. Upon returning from leave, Ms. Spriesch was assigned to a paramedic “relief pool,” which meant she received temporary assignments at a number of firehouses, some of which did not have private, non-bathroom areas. Ms. Spriesch brought several claims against the City, including pregnancy discrimination under Title VII, a pregnancy/childbirth accommodation claim under the Illinois Human Rights Act (IHRA), and breastfeeding accommodation claims under the federal Fair Labor Standards act and the Illinois Nursing Mothers in the Workplace Act (INMWA).
The City filed a motion to dismiss Ms. Spriesch’s claims. Most significantly, with regard to her INMWA claim, the court recognized that the law implies a private right of action, even though it does not expressly provide for one, so the City could potentially be liable to Ms. Spriesch for its failure to accommodate her as a nursing mother under the INMWA. The City also claimed that Ms. Spriesch’s Title VII pregnancy discrimination claim was time-barred because she filed her EEOC charge well over a year after she was placed on leave for her pregnancy; however, the court found her claim could be timely under a “continuing violation” theory, since other acts of discrimination were alleged to have occurred after that time. The court also allowed Ms. Spriesch to proceed on her IHRA discrimination claim for acts that occurred after date the IHRA was amended (January 1, 2015) to require employers to provide reasonable accommodations for medical and other common conditions related to pregnancy or childbirth.
This case emphasizes how important it is for school districts, as employers, to provide reasonable accommodations for pregnant and nursing employees. Otherwise, a district may face liability under a number of federal and state laws. The footnotes in the sample PRESS Policy 5:10, Equal Opportunity and Minority Recruitment, as well PRESS administrative procedure 5:10-AP, Workplace Accommodations for Working Mothers, provide further information about the legal requirements for such accommodations.
Copyright and Works for Hire
Shanton v. St. Charles Community Unit School District, 2017 WL 4865536 (N.D.Ill. 2017)
In 2005, Audrey Shanton, a computer lab assistant at St. Charles Community Unit School District 303, and her husband, developed a basic computer program that could track certain student information, such as student attendance, based on reading barcodes. The original program was created outside of work and without the District’s knowledge. In 2008, the District became aware of the program and asked Ms. Shanton if she would regularly update the program for use in the District. Ms. Shanton agreed to do so, albeit informally, and she rewrote and updated the program every year for the District through 2015. In 2015, the District informed her that it no longer wanted an updated program because it was going to use a new commercial program. Ms. Shanton, upon viewing the commercial program, believed it was a reversed engineered version of the derivative program she created in 2008. She sued the District for copyright infringement, claiming she owned the derivatives of the original 2005 program.
The District sought to have Ms. Shanton’s infringement claim dismissed on the basis that the derivative works of her original 2005 program were “works for hire” and belonged to the District. The court considered a number of factors to determine if the works belonged to Ms. Shanton or the District: (1) the hiring party’s right to control the manner and means by which the product is accomplished; (2) the skill required to create the material; (3) the location of the work; (4) the duration of the relationship between the parties; (5) whether the hiring party has the right to assign additional projects to the hired party; and (6) the provision of employee benefits. The court sided with the District and dismissed the infringement claim, finding that although Ms. Shanton maintained close control over the program updates after 2008 and could have rewritten the program off school grounds, it was clear that she was acting as an agent of the District because the program updates were made at the District’s request and on District property, and she received no additional pay for the updates. This case illustrates that works made within the scope of one’s employment belong to the employer, and it appears to be the first case in Illinois to specifically address the work for hire doctrine in the K-12 context. Whether a particular work qualifies as a work for hire is entirely dependent on the particular facts of a situation. Sample PRESS Policy 5:170, Copyright, generally addresses works made for hire and directs the superintendent to manage the development of instructional materials and computer programs authored by employees in the scope of their employment.
First Amendment; Free Speech Rights - Student expression off campus via social media
Shen et al. v. Albany Unified School District, et al., 2017 WL 5890089 (N.D. Ca. 2017).
The school district had the right to not only discipline student C.E. for racist and derogatory content directed toward specific students that he posted on an Instagram account, but also to discipline other students who commented on and/or “liked” certain posts.
In November 2016, Plaintiff C.E. created an Instagram account and granted access to a group of Albany High School (AHS) students. In March 2017, AHS students and school personnel discovered the account and its contents. The account contained 30-40 posts, many of which targeted AHS students and school personnel with racist and derogatory content, including a picture of an African-American AHS student and an African-American AHS basketball coach with nooses drawn around their necks. The district expelled C.E. and suspended students who had commented on or “liked” C.E.’s posts, as well as one student who had access to the account but never commented on or otherwise responded to it online.
The Court first considered whether the speech at issue was school speech, and found that it was because a “nexus” to the school existed (account followers were mostly school students, the posts featured 10 different students and school personnel, and the posts depicted school activities and were clearly taken on campus). In addition, even though C.E. intended that the Instagram account remain private, it was reasonably foreseeable that the speech would reach the school and create a risk of substantial disruption.
Next, the Court found that because the speech substantially disrupted school and invaded the rights of others, the district appropriately disciplined C.E. and those who commented on or “liked” his posts that targeted specific students. “There is no doubt that these plaintiffs meaningfully contributed to the disruptions at AHS by embracing C.E.’s posts in this fashion” the Court stated.
Notably, the Court did not uphold the discipline of four other students, who had neither approved of nor adopted any content targeting specific individuals within the school. The Court reasoned that “endorsement of speech that is offensive or noxious at a general level differs from endorsement or encouragement of speech that specifically targets individual students.”
This case is not binding in Illinois, however it reflects the increasing trend of courts to recognize the right of school districts to discipline students for certain misconduct that occurs off-campus via social media.
Failure to Change Teaching Methods is Not Protected Activity for Purposes of a Section 504 Interference Claim
Frakes v. Peoria Sch. Dist. No. 150, 872 F.3d 545 (7th Cir. 2017).
In February 2012, full-time tenured special education teacher Michelle Frakes received an “unsatisfactory” performance rating. Frakes refused to sign the rating, asserting it was unfair, and she formalized her opposition in a written document entitled “Points of Rebuttal.” In the “Points of Rebuttal,” Frakes admitted she needed to improve her performance and classroom management but defended her teaching methods. Frakes was placed on a remediation plan, but before it went into effect she requested and was placed on medical leave due to serious health conditions. Frakes’ unsatisfactory rating placed her and nine other full-time tenured teachers in “Group 2” on the “sequence of honorable dismissal list.” On April 9, 2012 Frakes, along with 54 other teachers, was honorably dismissed in a voluntary reduction in force.
Frakes sued the District in federal court, alleging that her “unsatisfactory” rating and subsequent honorable dismissal interfered with her ability to aid students in exercising their rights under Section 504 of the Rehabilitation Act. The district court granted summary judgement for the District, finding Frakes did not provide evidence that she engaged in protected activity under Section 504. On appeal, in its first time addressing an interference claim under Section 504, the Seventh Circuit Court of Appeals affirmed.
The Court first noted that a Section 504 employment discrimination claim is controlled by the standards of the Americans with Disabilities Act (ADA), so it looked at Frakes’ claim through the ADA anti-interference provision, which provides it is unlawful to “coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on the account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the ADA.” To prevail on her claim, Frakes would need to demonstrate that: (1) she engaged in activity statutorily protected by the ADA; (2) she was engaged in, or aided or encouraged others in, the exercise or enjoyment of ADA protected rights; (3) the defendants coerced, threatened, intimidated, or interfered on account of her protected activity; and (4) the defendants were motivated by an intent to discriminate. Frakes asserted that she engaged in protected activity when she refused to change her teaching methods in response to the “unsatisfactory” rating, but the Court did not buy her assertion, pointing out that she did not dispute her teaching methods in her “Points in Rebuttal,” nor did she mention her students’ rights or interests at all. The Court succinctly held that “the law protects assertions of rights, not teaching methods. The fact that Frakes taught students who are protected by the ADA does not alone render her teaching ‘protected activity.’”
Exhaustion of IDEA administrative procedures
Fry v. Cmty. Sch., 2017 WL 685533 (2017).
Petitioner E.F., a student with cerebral palsy, had a service dog recommended by her pediatrician to help her with daily life activities. When E.F. was in kindergarten, her parents requested that the service dog accompany E.F. to school. The School District denied this request on the basis that the human aide assigned to E.F. through her Individualized Education Program (IEP) was able to address E.F.’s needs, rendering the service dog unnecessary. E.F.’s parents began homeschooling E.F. and filed a complaint with the Department of Education’s Office for Civil Rights (OCR), claiming that the exclusion of E.F.’s service animal was a violation of her rights under Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504). After OCR found in favor of E.F., the school invited E.F. to return to school with the service dog. Parents opted to enroll E.F. in another school district and then filed suit in federal court against the local and regional school district and principal (School Districts), alleging they violated the ADA and Section 504 by denying E.F. equal access to the school and its programs, refusing to reasonably accommodate E.F.’s use of a service dog, and discriminating against E.F., seeking declaratory and monetary relief. The District Court granted the School Districts’ motion to dismiss the suit, holding that §1414(l) of the Individuals with Disabilities Education Act (IDEA) required E.F. to first exhaust the IDEA’s administrative procedures. The Sixth Circuit affirmed.
The U.S. Supreme Court, in an 8-0 ruling, held that exhaustion of the IDEA’s administrative procedures is unnecessary when the essence of the complaint is something other than the denial of IDEA’s core guarantee of a “free appropriate public education” (FAPE). Because the only relief provided through IDEA’s administrative procedures is relief for the denial of FAPE, this must be the substance of the plaintiff’s complaint for IDEA’s administrative procedures to apply. If a suit is brought under a different statute, such as the ADA or Section 504, and the relief sought is not for the denial of a FAPE, exhaustion of the IDEA’s procedures is not required.
The Court stated that courts must look at the substance of a claim to determine if a plaintiff is seeking relief for the denial of FAPE. The Court provided two questions to help determine whether the substance of the claim is denial of FAPE. First, “Could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library?” Second, “Could an adult at the school—say an employee or visitor—have pressed essentially the same grievance?” If the answer to either question is yes, is it not likely that the complaint is about FAPE. If the answer to both questions is no, however, it is likely that the complaint does concern FAPE. The Court also suggested another clue that the case is about a denial of FAPE can be ascertained by looking at the history of the proceedings. If the plaintiff initially sought relief through IDEA’s administrative remedies, this may suggest the substance of the claim is a denial of FAPE.
The Court has remanded the case back to the Sixth Circuit to determine whether the Frys utilized the IDEA’s dispute resolution process prior to filing a federal suit. If so, the Sixth Circuit needs to determine whether the Frys’ actions indicate that the substance of their complaint is related to a denial of FAPE, thus requiring further exhaustion of IDEA’s administrative procedures.
This decision means that a plaintiff can bring a suit under antidiscrimination statutes such as the ADA or Section 504, without first exhausting IDEA’s administrative procedures if the gravamen of the complaint is not relief sought for the denial of FAPE.
Cassandra Black, IASB Law Clerk
Free Appropriate Public Education
Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. ____ (2017).
Petitioner Endrew F., a student with autism, attended school in Douglas County from preschool to fourth grade and received special education services through an Individualized Education Program (IEP) during this time. When the District proposed his fifth grade IEP, Endrew’s parents removed him from public school and unilaterally placed him at a private school that specializes in educating students with autism because they did not believe he was making meaningful progress on his IEP goals. During the fall of Endrew’s fifth grade year, the District proposed a new IEP, but parents rejected it claiming that the final IEP proposed by the District did not provide Endrew with a Free Appropriate Public Education (FAPE), as is required by the Individuals with Disabilities Education Act (IDEA). Endrew’s parents filed a complaint seeking reimbursement for private tuition. In response to parents’ claim, an Administrative Law Judge found in favor of the District. The District Court and Tenth Circuit affirmed this decision.
The Supreme Court first addressed the FAPE requirement 35 years ago in Board of Education of Hendricks Hudson Central School District v. Rowley. The Rowley court held that a student has received FAPE if the student’s IEP is “reasonably calculated to enable the child to receive educational benefits.” The Rowley court stated that for students who are receiving instruction in the regular classroom, this would typically require an IEP “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.”
The U.S. Supreme Court agreed with the Rowley decision that for students included in the general education environment, an IEP should typically be “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” The Court recognized, however, that this standard may not be appropriate for all students with disabilities, and for students not included in the general education setting IDEA requires that the IEP be “appropriately ambitious in light of [the student’s] circumstances.” The Court held that the substantive obligation under IDEA requires a district to offer an “educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” While this standard is significantly more demanding that the “merely more than de minimis” standard applied by the Tenth Circuit, it is less demanding than the parents’ proposed standard that students with disabilities be provided with educational opportunities that are “substantially equal to the opportunities afforded children without disabilities.” The Court declined to elaborate on what “appropriate” progress looks like, stating that this will depend on the unique circumstances of each child. The Court stated that when a court is reviewing the IEP, it must look at whether the IEP is “reasonable,” not whether it is “ideal,” and that deference should continue to be given to school authorities based on the application of expertise and exercise of judgment.
Cassandra Black, IASB Law Clerk
Anti-Bullying Policies, Contracts, Tort Immunity Act
Mulvey v. Carl Sandburg High School, 2016 IL App (1st) 151615 (10-28-16).
A student and her parents sued the district for injuries allegedly sustained as a result of school bullying. Plaintiffs claimed the district breached a contract with the student by failing to enforce its anti-bullying policies as stated in the school handbook and athletic handbook. Plaintiffs further claimed the district’s actions were willful and wanton because the district allegedly acted with utter indifference and reckless disregard to the bullying conduct.
With regard to the breach of contract claims, the circuit court granted the district’s motion for judgment on the pleadings, finding that the creation and distribution of student handbooks did not establish the elements of contract formation even though the handbooks stated they “form contracts between the School, its students and their parents.” The appellate court affirmed, noting that the student handbook did not include any specific promise to prevent or eliminate bullying, or to take any particular action in any specific circumstance.
With regard to the willful and wanton conduct claim, the circuit court dismissed this claim on tort immunity grounds. The appellate court agreed, finding that Section 2-201 of the Tort Immunity Act shielded the district from liability because how the district implemented and applied its anti-bullying policies were discretionary acts, not ministerial tasks, as the policies did not mandate a specific response to every set of circumstances. Moreover, it found that such policy determinations involve teachers and school administrators balancing various interests (including student safety interests), which meets the Illinois Supreme Court’s definition of policy decisions that fall within the tort immunity context.
First Amendment; Free Speech Rights - Student expression off campus, sexually harassing speech
C.R. v. Eugene School District 4J, --- F.3d --- (9th Cir. 2016).
The school district had the right to suspend student C.R. for off-campus, sexually harassing statements he made toward two younger students as they were walking home from school. The Court found that the suspension did not violate C.R.’s First Amendment free speech rights because his speech was tied closely enough to the school to permit its regulation (in other words, a “nexus” to the school existed). It then found that “because the harassment happened in such close proximately to the school, administrators could reasonably expect the harassment’s effects to spill over into the school environment.” Based on this, the Court held that the school could take reasonable disciplinary action against C.R. The Court further held that the school did not violate C.R.’s procedural or substantive due process rights by imposing the suspension.
This case is not binding in Illinois, however, it reflects the increasing trend of courts to recognize the right of school districts to discipline students for certain misconduct that occurs off-campus.
Earl v. Decatur Public Schools Bd. of Educ., --- N.E.3d ----2015 IL App (4th) 141111, 2015 WL 5474476
Service learning hours required by the school district did not constitute a form of involuntary servitude. Section 27-22 of School Code allows school districts the freedom to add additional graduation requirements based on certain needs of their students and communities in their districts. Section 27-22.3 of School Code does not prohibit districts from requiring students to complete community service hours as an additional graduation requirement. A requirement of 24 hours of community service over four years is not unreasonable, onerous, or unduly burdensome.
Shanell M. Bowden, IASB Law Clerk
14th Amendment, Title IX, Transgender student rights
G.G. ex rel. Grimm v. Gloucester County School Bd., --- F.Supp.3d --- No. 4:15cv54, 2015 WL 5560190
A transgender boy student claimed that the school board’s bathroom policy that prohibited him from using the bathroom that corresponds with his gender identity amounted to sex discrimination under Title IX. The court found that Department of Education regulation 34 C.F.R. § 106.33 allows schools to provide separate bathroom facilities based upon sex, so long as the bathrooms are comparable. Therefore, the school board policy did not violate Title IX by limiting the student to the bathrooms assigned to his biological sex. The court found that the school board was protecting a constitutional right to bodily privacy while the student wanted to overturn a “tradition of segregating bathrooms based on biological differences between the sexes.”
The court denied the student’s request for an order allowing him to resume using the boys’ restroom while the court ruled on his Fourteenth Amendment Equal Protection claim.
While this case does not apply in Illinois, transgender or gender nonconforming student rights is a developing and important area. School officials should continue to monitor cases on this topic.
Shanell M. Bowden, IASB Law Clerk
First Amendment; Free Speech Rights - Student expression off campus of threat
Bell v. Itawamba County School Board, 799 F.3d 379 (5th Cir. 2015)
The school district has the right to discipline students for online speech if the speech creates a reasonable risk of a substantial disruption at school. Speech directed at the school community and that is understood to be threatening, harassing, and intimidating could reasonably be anticipated to cause a substantial disruption at school.
While this does not apply in Illinois, this case reflects the increasing trend of courts recognizing the right of school districts to discipline students for certain misconduct that occurs off-campus and online.
Shanell M. Bowden, IASB Law Clerk
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