2015 Summer Law Institute - Jackson

2015

Summer Law Institute June 26 - Jackson

SUMMER LAW INSTITUTE Doubletree – Jackson TN

Agenda Friday June 26, 2015 8:00 – 8:15

WELCOME & OVERVIEW Randall Bennett, TSBA Deputy Executive Director & General Counsel

8:15 – 9:15

LEGISLATIVE UPDATE Lee Harrell, TSBA Director of Government Relations & Staff Attorney

9:15 – 10:15

WHEN RIGHTS AREN’T CIVIL: A Discussion of Board/Board Member Exposure in Civil Rights Lawsuits Emily Mack, Attorney Lewis, Thomason, King, Krieg and Waldrop P.C.

10:15 – 10:35

BREAK

10:35 – 11:35

WHOSE FAULT IS IT ANYWAY? School System Liability Issues Robert G. Wheeler, Jr. Attorney

11:35 – 12:30

LUNCH (Provided)

12:30 – 1:30

YOU THINK YOU CAN TAKE MY CELL PHONE? How School Administrators May Restrict On/Off Campus Speech Charles Purcell and Chris Hayden, Attorneys Purcell, Sellers, & Craig

1:30 – 1:50

BREAK

1:50 – 2:50

IN THE TRENCHES: Tough Choices on Sensitive Topics Steve Shields & Debra Owen, Attorneys Jackson, Shields, Yeiser & Holt

1

2:50 – 3:30

CASE UPDATE Round-up of School Law Cases Randall Bennett

3:30 – 4:00

QUESTION & ANSWER/EVALUATION & WRAP-UP/ADJOURN

To access the digital version of this notebook, please visit www.issuu.com/tsba.

2

Legislative Update

Lee Harrell, TSBA Director of Government Relations & Staff Attorney

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4

5

6

7

ELA K-5

ELA 6-8

ELA 9-12

ELA Review & Development Committee

Math 6-8

Math K-5

Math 9-12

Math Review & Development Committee

Standards Recommendation Committee

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• • •

9

10

Questions?

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12

2015 Public Acts Relative to K-12 Education Chapter Number

Subject

Abstract

Bill Number

46

County Officers

Removes obsolete and contradictory language concerning temporary superintendents of schools.

SB0538

Education

Changes references in the code from vocational education to career and technical education; changes references in the code from the board for vocational education to the board for career and technical education.

SB0087

DUI Offenses

Directs the commissioner of education to develop guidelines for LEAs to create an annual report, rather than a monthly report, that informs students of the death of any person 18 years of age or younger who died as a result of a person 18 years of age or younger driving under the influence of an intoxicant or drug.

SB0109

Employees, Employers

Creates a cause of action against an employer for discharge or adverse employment action based solely on transportation or storage of a firearm ammunition in an employer parking lot.

SB1058

83

Adoption

Requires that the family life curriculum, to the extent that the topic and the manner of communication is age-appropriate, inform students, in all LEAs, concerning the process of adoption and its benefits.

SB0046

132

Local Education Agencies

Requires local boards of education to provide financial information concerning expenditures for lobbying and professional associations.

HB0772

141

Students

Authorizes a school principal to excuse students for non-school-sponsored extracurricular activities; requires the student to submit to the school documentation of the activity and the parents to submit a written request to the principal at least seven days prior to the student's requested excused absence.

SB0359

142

Education

Extends the date of the repeal of the Virtual Public Schools Act from June 30, 2015, to June 30, 2019.

SB0343

158

Education

Enacts the "Tennessee Teaching Evaluation Enhancement Act."

HB0108

55

58

80

165

Prohibits supervisors from disciplining or discouraging teachers and other educators for reporting inaccuracies or errors or potentially inflammatory material in textbooks or other educational materials to supervisors, elected Teachers, Principals and School officials, or parents or guardians; prohibits Personnel requiring, as a condition of employment, a teacher or other educator to agree not to report inaccuracies or errors or potentially inflammatory material in textbooks or other educational materials.

HB0429

171

Halts the closure at the end of the 2014-2015 school year of charter schools on the state's 2015 priority list; makes the 2017 priority list the first list for which charter schools appearing on a priority list must close at the end of the school year.

HB0125

Schools, Charter

13

2015 Public Acts Relative to K-12 Education Chapter Number

Subject

Abstract

Bill Number

Education, Dept. of

Deletes the current schedule for the Tennessee comprehensive assessment program that requires testing to occur during a two-week window by the first Monday on or after April 22; authorizes the commissioner of education to establish a schedule.

SB0088

Education

Permits a local board of education to refuse to accept federal funding for an education program without a penalty being assessed by a state agency or state official, unless such refusal would cause a loss of federal funding for all participating LEAs in the program.

SB0063

Education

Prohibits schools from requiring students or parents to provide information on firearm ownership; prohibits LEAs from requiring employees to provide information on ownership; prohibits adverse disciplinary or employment action based on information of ownership that is voluntarily provided.

SB0633

232

Teachers, Principals and School Personnel

Changes, from "prior to June 15" to "within 5 business days following the last instructional day for the school year" the time within which notices of dismissal or failure of re-election must be provided to teachers.

SB0893

233

Education, State Board of

Prohibits the state board from denying instructional leadership licensure based solely on the applicant completing a leadership preparation program located outside of this state.

SB1088

239

Prohibits certain campaign-related activities by Teachers, Principals and School teachers and certain other public school employees Personnel while on school property.

HB0158

250

Firearms and Ammunition

Allows permit holders to carry handguns in parks and other public recreation areas owned or operated by local governments except when the property is in use by a school for an athletic event or other school-related activity; removes authority of local governments to prohibit handguns in parks.

HB0995

Education

Authorizes and encourages local education agencies to adopt as their course of instruction in character education the Congressional Medal of Honor Character Development Program.

HB1204

184

197

214

251

255

Requires fiscal capacity for BEP purposes of each LEA to be set by May 1 before the next school year Basic Education Program (BEP) begins; prohibits any change in any LEA's fiscal capacity after it is set.

HB0006

256

Students

Allows LEAs to opt out of including the student's TCAP scores in the student's final grades if the LEA doesn't receive the scores at least five instructional days before the end of the school year.

HB0036

260

Education

Requires certain institutions to report nonimmigrant student enrollment to the department of safety.

HB0670

14

2015 Public Acts Relative to K-12 Education Chapter Number

Subject

Abstract

Bill Number

Education

Authorizes LEAs, in consultation with local law enforcement, to institute at least one domestic violence awareness education program per year for middle and high schools; requires each program to be developmentally appropriate based on the students' age and maturity level.

HB0830

265

Requires the local board to consider the years of service acquired by a teacher who takes an Teachers, Principals and School extended leave from an LEA to teach in a public Personnel charter school authorized by the LEA, ASD, or state board of education in certain circumstances.

HB0874

266

Textbooks

Requires the textbook commission to study the age and physical status of textbooks used in public schools of this state and issue a written report to the members of the general assembly, by January 1, 2016, detailing the average age, physical condition, and cost to replace outdated textbooks, and solutions to avoiding the use of textbooks that are over 10 years old.

HB0968

286

Students

Requires a school in which a child is a suspected victim of child sexual abuse and the abuse occurred while the child was under the supervision or care of the school to make reasonable accommodations to separate the alleged victim from the alleged perpetrator.

HB1221

303

School Transportation

Increases the permissible size of advertisements on school buses from 16 inches high and 60 inches long to 36 inches high and 90 inches long.

SB0334

304

Teachers, Principals and School Personnel

321

Students

325

Sports

Enacts the "Sudden Cardiac Arrest Prevention Act."

SB0985

Education

Authorizes a local school board to create a policy that excuses students who request to attend a released time course in religious moral instruction taught by an independent entity off school property.

SB1246

Schools, Charter

Allows the governing body of a charter school to choose the insurance plans offered to the school's teachers and other full-time permanent employees; removes requirement that charter school employees participate in the state group insurance plan.

SB0189

263

328

346

357

Students

361

Education

Authorizes the state board of education to make policies concerning the revocation of licenses and certificates for misconduct.

Allows students to self-administer enzymes for cystic fibrosis or pancreatic insufficiency in certain circumstances.

Prohibits an LEA from requiring more than the minimum graduation requirements for students enrolling or transferring in the 11th grade or later who are in the custody of the department of children's services.

Requires the commissioner of education, by October 1 of the year prior to the public identification of priority schools, to notify any school and its respective LEA if the school is among the bottom 10 percent of schools in overall achievement .

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SB0341 SB0724

SB0537

SB0588

2015 Public Acts Relative to K-12 Education Chapter Number

390

Subject

Abstract

Bill Number

Education

Prohibits the placement of a school identified as a priority school in the achievement school district if the school makes certain improvements before being assigned to the achievement school district.

SB0758

403

Public Contracts

423

Education, Curriculum

431

Education

445

Students

Increases, from $25,000 to $50,000, the threshold for public works projects that require a registered architect, registered engineer, or registered landscape architect.

Outlines the process for reviewing and adopting new academic standards for Math and English/Language Arts to be implemented in the 2017-2018 school year.

Enacts the "Individualized Education Act." Allows children who will be five years of age after August 15, 2015, but on or before August 31, 2015, and who entered two-year pre-kindergarten programs in the 2013-2014 school year to enter kindergarten programs in the 2015-2016 school year.

SB0978

HB1035 SB0027 SB0303

489

Education

Requires the Tennessee STEM innovation network to establish STEM innovation hubs in rural areas and in Northwest Tennessee; requires the Tennessee STEM innovation network to provide a middle school curriculum on the variety and benefits of STEM careers.

493

Education

Enacts "The Educator Protection Act of 2015."

SB0604

495

Lottery, Scholarships and Programs

Allows recipients of the HiSET high school equivalency credential to be eligible for a Tennessee HOPE scholarship.

SB0624

Students

Requires a student, during the student's high school career, to take a United States civics test prepared by the LEA and consisting of between 25 and 50 questions taken from the civics test administered by the United States citizenship and immigration services.

HB0010

Juvenile Offenders

Authorizes the director of schools to expel or remand a student to an alternative school upon the issuance of a criminal complaint charging a student with a felony or upon the issuance of a felony delinquency complaint against the student; mandates the director of schools to expel a student upon the conviction of a felony or an admission of guilt to that felony delinquency against the student; establishes the notice, hearing, and appeal requirements for students expelled or remanded to an alternative school.

HB0174

Education

Authorizes the achievement school district (ASD) to enroll students who are not zoned to schools on the priority list. Caps the enrollment of such students to 25% of the school population.

HB0473

499

501

507

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SB0453

$>tate of

~ennessee

PUBLIC CHAPTER NO. 132 HOUSE BILL NO. 772

By Representative Dunn Substituted for: Senate Bill No. 1229

By Senator Bell

AN ACT to amend Tennessee Code Annotated, Title 4; Title 5; Title 6; Title 7; Title 49, Chapter 1; Title 49, Chapter 2 and Title 49, Chapter 3, relative to school budgets.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 49, Chapter 2, Part 2, is amended by adding the following language as a new section: (a) For purposes of this section, "lobbying expenditures" means funds used to lobby, as defined in ยง 3-6-301, and also includes any dues paid to associations or membership organizations that lobby. (b) A local board of education shall include in its budget for each fiscal year a line item for professional associations and lobbying expenditures that includes the total amount to be spent on lobbying expenditures by the board during that fiscal year. (c) When any local board of education of a county or city school system submits its budget to the appropriate local legislative body for approval, the budget shall have attached a form that details all professional associations and lobbying expenditures included in the budget. The form shall at a minimum specify: (1) The total amount anticipated to be spent on professional associations and lobbying expenditures; (2) The amount of any dues to be paid to entities that lobby, along with the names of such entities; (3) The amount of any funds to be used to hire contract lobbyists; and (4) For the fiscal year beginning in 2017, the actual amount spent on items listed in subdivisions (c)(1)-(3) for the previous fiscal year.

SECTION 2. This act shall take effect July 1, 2016, the public welfare requiring it.

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PUBLIC CHAPTER NO. 158 HOUSE BILL NO. 108

By Representatives McCormick, Kevin Brooks, Mark White, Hardaway, Alexander Substituted for: Senate Bill No. 119

By Senators Norris, Gresham AN ACT to amend Tennessee Code Annotated, Title 49, Chapter 1, Part 3 and Title 49, Chapter 5, Part 5, relative to teacher evaluations.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. This act shall be known and may be cited as the "Tennessee Teaching Evaluation Enhancement Act." SECTION 2. Tennessee Code Annotated, Section 49-1-302(d)(2)(A), is amended by deleting the period at the end of the subdivision and adding the following: ; however, nothing in this subdivision shall require an LEA to use student achievement data based on state assessments as the sole factor in employment decisions.

SECTION 3. Tennessee Code Annotated, Section 49-1-302(d)(2), is amended by adding the following new subdivision: (E) For teachers with access to individual data representative of student growth as specified in subdivision (d)(2)(B)(ii), the following provisions shall apply: (i) In the 2015-2016 school year, the evaluation criteria identified in subdivision (d)(2)(B)(ii) shall be adjusted so that student growth data generated by assessments administered in the 2015-2016 school year shall account for ten percent (1 0%) of the overall evaluation criteria identified in subdivision (d)(2)(B). (ii) In the 2016-2017 school year, the evaluation criteria identified in subdivision (d)(2)(B)(ii) shall be adjusted so that student growth data generated by assessments administered in the 2015-2016 and 2016-2017 school years shall account for twenty percent (20%) of the overall evaluation criteria identified in subdivision (d)(2)(B). (iii) In the 2017-2018 school year and thereafter, the student growth component of the evaluation criteria shall be determined under subdivision (d)(2)(B)(ii). (iv) For the 2015-2016 through 2017-2018 school years, the most recent year of student growth data shall account for the entire percentage of growth data required in a teacher's evaluation if such use results in a higher evaluation score.

SECTION 4. Tennessee Code Annotated, Section 49-1-302(d)(2)(B), is amended by deleting subdivision (vi) in its entirety and replacing it with the following language: (vi) Notwithstanding subdivisions (d)(2)(B)(i) and (ii), for teachers without access to individual growth data representative of student growth as specified in subdivision (d)(2)(B)(ii), thirty percent (30%) of the evaluation criteria shall be composed of student achievement data with fifteen percent (15%) of the evaluation criteria based on student growth data as represented by TVAAS, or some other comparable measure, if no such TVAAS data is available; however, in the 2015-2016 school year, no more than ten percent (10%) of the evaluation criteria shall be based on TVAAS data.

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HB 108 SECTION 5. Tennessee Code Annotated, Section 49-1-302(d), is amended by adding the following new subdivision: (7) Pursuant to state board of education rules and policies, an LEA may utilize either the state board adopted model plan for the qualitative portion of teacher evaluation or an evaluation model that has been proposed by the LEA and approved by the state board of education. Evaluation models approved by the state board of education may, with local board approval, be utilized in any LEA SECTION 6. Tennessee Code Annotated, Section 49-5-503(4), is amended by adding the following language between the";" and the word"and" at the end of the subdivision: provided, however, that a teacher who has met all other requirements for tenure eligibility but has not acquired an official evaluation score during the last one (1) or two (2) years of the probationary period due to an approved extended leave; transfer to another school or position within the school district; or invalidated data due to a successful local level evaluation grievance pursuant to ยง 49-1-302(d)(2)(A) may utilize the most recent two (2) years of available evaluation scores achieved during the probationary period to meet the provisions of this subdivision (4); SECTION 7. Tennessee Code Annotated, Section 49-5-504(a)(2), is amended by deleting the"." at the end of the subdivision and adding the following language: ; provided, however, that a teacher who has met all other requirements for tenure eligibility but has not acquired an official evaluation score during the last one (1) or two (2) years of the probationary period due to an approved extended leave; transfer to another school or position within the school district; or invalidated data due to a successful local level evaluation grievance pursuant to ยง 49-1-302(d)(2)(A) may utilize the most recent two (2) years of available evaluation scores achieved during the probationary period to meet the provisions of this subdivision (a)(2).

it.

SECTION 8. This act shall take effect upon becoming a law, the public welfare requiring

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PUBLIC CHAPTER NO. 184 SENATE BILL NO. 88

By Norris, Tracy, Yager

Substituted for: House Bill No. 78

By McCormick, Kevin Brooks, Dunn, Ragan, Hardaway AN ACT to amend Tennessee Code Annotated, Section 49-6-6002, relative to testing schedules.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 49-6-6002(b), is amended by deleting the subsection in its entirety and substituting instead the following language: (b) The commissioner of education shall establish a schedule for the administration of the Tennessee comprehensive assessment program assessments and meet the provisions ofยง 49-1-226. The commissioner shall have the authority to adjust the schedule for reasons including, but not limited to, natural disaster, prolonged inclement weather, or serious outbreaks of contagious illness.

SECTION 2. This act shall take effect upon becoming a law, the public welfare requiring it.

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PUBLIC CHAPTER NO. 232 SENATE BILL NO. 893

By Briggs

Substituted for: House Bill No. 1031

By Daniel, Hardaway AN ACT to amend Tennessee Code Annotated, Title 49, relative to the employment of teachers.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 49-5-409{b), is amended by deleting the language "prior to June 15" and by substituting instead the language "within five (5) business days following the last instructional day for the school year".

SECTION 2. This act shall take effect July 1, 2015, the public welfare requiring it.

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~ennessee

PUBLIC CHAPTER NO. 239 HOUSE BILL NO. 158

By Representative Casada Substituted for: Senate Bill No. 183

By Senator Hensley AN ACT to amend Tennessee Code Annotated, Title 2, Chapter 19, Part 2; Title 49, Chapter 2 and Title 49, Chapter 5, relative to public school employees.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 2-19-201 (2), is amended by deleting the punctuation ";" and substituting instead the following: . "Public lands, offices, buildings, vehicles, and facilities" include those owned and used by a local education agency (LEA); SECTION 2. Tennessee Code Annotated, Section 2-19-201, is amended by adding the following language as a new, appropriately designated subdivision: "Teacher" means any person employed in a public school system as a teacher, helping teacher, teacher's aide, librarian, principal, supervisor, director of schools, or member of the administrative staff.

SECTION 3. Tennessee Code Annotated, Section 2-19-201 (3), is amended by deleting the language "teachers, as defined byยง 49-1501,".

SECTION 4. Tennessee Code Annotated, Section 2-19-201 (3), is further amended by deleting the punctuation "." at the end of the first sentence in the subdivision and substituting instead", including teachers.".

SECTION 5. Tennessee Code Annotated, Section 2-19-206, is amended by adding the following language as a new, appropriately designated subsection: (d)

(1) Subsections (a), (b), and (c) shall not apply to teachers.

(2) It is unlawful for any teacher to display campaign literature, banners, placards, streamers, stickers, signs, or other items of campaign or political advertising on behalf of any party, committee or agency, or candidate for partisan or nonpartisan public office elected by the people, on the premises of any building or land owned by a local education agency (LEA), or to use any of the facilities of the LEA, including equipment and vehicles, for such purposes. This subdivision (d)(2) does not apply to the display of campaign banners, placards, streamers, stickers, signs, or other items of campaign or political advertising on LEA-owned property or the use of LEA equipment, when the display or use is a part of and solely for the purpose of the LEA's program of student education relative to the electoral process. Except for the use of LEA-owned equipment and vehicles, this subdivision (d)(2) does not apply to a teacher during hours in which the teacher is not performing school duties.

(3) This subsection (d) shall not be construed to prohibit any teacher from displaying a decal or bumper sticker on the teacher's personal vehicle while the vehicle is parked on LEA property.

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HB 158

SECTION 6. Tennessee Code Annotated, Section 2-19-207(b)(2), is amended by deleting the language "persons duly qualified as candidates for public office and teachers, as defined by ยง 49-1501," and substituting instead "and persons duly qualified as candidates for public office".

SECTION 7. Tennessee Code Annotated, Section 2-19-207, is amended by adding the following language as a new subsection (c): (c) (1) Subsections (a) and (b) shall not apply to teachers.

(2) It is unlawful for any teacher employed by an LEA during those hours of the day when the LEA requires the teacher to be performing school duties to: (A) Engage actively in a political campaign on behalf of any party, committee, organization, or agency; (B) Engage in a campaign for a candidate for partisan or nonpartisan public office elected by the people; (C) Attend political meetings or rallies; (D) Use the teacher's employment to interfere with or affect the result of any regular or special primary election conducted within the state; or (E) Perform political campaign duties or functions.

(3) Nothing in this subsection (c) shall be construed to deprive a teacher from voting for the party or candidate of the teacher's choice or to deprive the teacher of the right to express the teacher's personal opinion concerning any political subject, party, or candidate.

(4) A teacher on leave or during those hours in which the teacher is not required to be performing school duties is not subject to the restrictions in subdivision (c)(2). No policy or rule of an LEA shall be more restrictive of the political activity of a teacher on leave or during those hours in which the teacher is not required to be performing school duties than those restrictions set forth in this subsection (c).

SECTION 8. This act shall take effect July 1, 2015, the public welfare requiring it.

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PUBLIC CHAPTER NO. 250 HOUSE BILL NO. 995

By Representatives Harrison, Holsclaw, Goins, Dunn, Todd, Lundberg, Haynes, Eldridge Substituted for: Senate Bill No. 1171

By Senators Stevens, Gresham, Ketron AN ACT to amend Tennessee Code Annotated, Title 39, Chapter 17, Part 13, relative to the possession of weapons in areas frequented by children.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 39-17-1311(b)(1), is amended by deleting subdivision (H) and substituting instead the following: (H) (i) Persons possessing a handgun, who are authorized to carry the handgun pursuant to ยง 39-17-1351, while within or on a public park, natural area, historic park, nature trail, campground, forest, greenway, waterway, or other similar public place that is owned or operated by the state, a county, a municipality, or instrumentality of the state, a county, or municipality. (ii) Subdivision (b)(1 )(H)(i) shall not apply if the permit holder: (a) Possessed a handgun in the immediate vicinity of property that was, at the time of possession, in use by any board of education, school, college or university board of trustees, regents, or directors for the administration of any public or private educational institution for the purpose of conducting an athletic event or other school-related activity on an athletic field, permanent or temporary, including but not limited to, a football or soccer field, tennis court, basketball court, track, running trail, Frisbee field, or similar multi-use field; and

(b) Knew or should have known the athletic activity or schoolrelated activity described in subdivision (b)(1)(H)(a) was taking place on the property; or

(c) Failed to take reasonable steps to leave the area of the athletic event or school-related activity after being informed of or becoming aware of its use; SECTION 2. Tennessee Code Annotated, Section 39-17-1311, is amended by deleting subsections (c), (d), and (e) in their entireties and redesignating accordingly.

SECTION 3. Tennessee Code Annotated, Section 39-17-1309, is amended by deleting from subdivision (b)(1) and subdivision (c)(1)(A) the language "or any other property owned, used or operated by" and substituting instead the language "or any other property owned, operated, or while in use by".

SECTION 4. Tennessee Code Annotated, Section 39-17-1309, is amended by adding the following new subdivision to subsection (e):

() (A) Persons possessing a handgun, who are authorized to carry the handgun pursuant to ยง 39-17-1351, while within or on a public park, natural area,

24

HB 995 historic park, nature trail, campground, forest, greenway, waterway, or other similar public place.

(B) Subdivision (A) shall not apply if the permit holder: (i) Possessed a handgun on property described in ( )(A) that is owned or operated by a board of education, school, college, or university board of trustees, regents, or directors unless the permit holder's possession is otherwise excepted by this subsection; or (ii) Possessed a handgun in the immediate vicinity of property that was, at the time of possession, in use by any board of education, school, college or university board of trustees, regents, or directors for the administration of any public or private educational institution for the purpose of conducting an athletic event or other school-related activity on an athletic field, permanent or temporary, including but not limited to, a football or soccer field, tennis court, basketball court, track, running trail, Frisbee field, or any similar multi-use field; and (iii) Knew or should have known that: (a) An athletic event or school-related activity described in subdivision (e)( )(B)(ii) was taking place on the property at the time of the possession; or (b) The property on which the possession occurred was owned or operated by a school entity described in (e)( )(B)(ii); or (iv) Failed to take reasonable steps to leave the area of the athletic field or school-related activity or the property after being informed or becoming aware of: (a) Its use for athletic or school-related purposes; or (b) That it was, at the time of the possession, owned or operated by a school entity described in (e)( )(B)(ii).

SECTION 5. Tennessee Code Annotated, Section 39-17-1311, is amended by deleting from subdivision (b)(1)(J)(ii) the word "transversing" and substituting instead the word "traversing".

SECTION 6. Any department of state government may, but is not required to, change, remove, or replace signs as a result of Sections 1 or 4 of this act prior to the time the signs are regularly scheduled to be changed, replaced, or removed or are required to be changed, replaced, or removed by any other law or due to destruction or theft; provided, that the general assembly may specifically provide funds for the purpose of removing or replacing signs in a general appropriations act. it.

SECTION 7. This act shall take effect upon becoming a law, the public welfare requiring

25

$>tate of '<!Cennessee PUBLIC CHAPTER NO. 256 HOUSE BILL NO. 36

By Representatives Dunn, Hardaway Substituted for: Senate Bill No. 285

By Senators Briggs, Bowling

AN ACT to amend Tennessee Code Annotated, Title 49, Chapter 1; Title 49, Chapter 2 and Title 49, Chapter 6, relative to student grades.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 49-1-617, is amended by designating the existing language as subsection (a) and adding the following language as new subsection (b): (b) Notwithstanding subsection (a), if an LEA does not receive its students' TCAP scores at least five (5) instructional days before the end of the school year, then the LEA may choose not to include its students' TCAP scores in the students' final grades in the subject areas of mathematics, English language arts, science, and social studies.

SECTION 2. This act shall take effect upon becoming a law, the public welfare requiring it.

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PUBLIC CHAPTER NO. 286 HOUSE BILL NO. 1221

By Representatives Towns, Hardaway, Parkinson Substituted for: Senate Bill No. 656

By Senator Kyle AN ACT to amend Tennessee Code Annotated, Title 37 and Title 49, relative to child sexual abuse occurring while under the care or supervision of a public school.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 49-6-3102, is amended by adding the following language as new, appropriately designated subsections: ( ) If a child who attends a public school is the suspected victim of child sexual abuse as defined in ยง 37-1-602(a)(3) and the abuse occurred while the child was under the supervision or care of the school, then the school shall make reasonable accommodations to separate the alleged victim of child sexual abuse from the alleged perpetrator. ( ) If available and appropriate, the local school board shall, upon request by the parent of the child, reassign a child who attends a public school and is the victim of child sexual abuse as defined inยง 37-1-602(a)(3) when: (1) The abuse occurred while the child was under the supervision or care of the school; and (2) The perpetrator of the abuse is: (A) Substantiated by the department of children's services; (B) Adjudicated by a juvenile court to have committed the child sexual abuse; or (C) Criminally charged.

SECTION 2. This act shall take effect upon becoming a law, the public welfare requiring it.

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PUBLIC CHAPTER NO. 321 SENATE BILL NO. 724

By Green

Substituted for: House Bill No. 659

By Reedy AN ACT to amend Tennessee Code Annotated, Title 49, relative to self-administration of certain prescribed enzymes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 49, is amended by adding the following as a new chapter: (a) As used in this section: (1) "Emergency care plan" (ECP) means a child-specific action plan to facilitate quick and appropriate responses for an individual emergency in the school setting; (2) "Individualized healthcare plan" (IHP) means a written plan of care developed at the local level to outline the provision of student healthcare services intended to achieve specific student outcomes. The IHP is part of the nursing process that is detailed in the National Association of School Nurses Position Statement: Individualized Healthcare Plans, The Role of the School Nurse (2013); (3) "Pancreatic insufficiency" means a disorder of the digestive system.

Pancreatic insufficiency may include the diagnosis of cystic fibrosis, a chronic disease that affects the lungs and digestive system. (b) Self-administration in accordance with this section shall permit a student diagnosed with pancreatic insufficiency or cystic fibrosis to self-manage prescribed pancreatic enzyme therapy in the manner directed by the licensed healthcare provider without additional assistance or direction. (c) An emergency care plan (ECP) may be a component of a student's individualized healthcare plan (IHP). The ECP shall specify when the emergency number (911) will be called and describe a plan of action when the student is unable to self-administer medication or self-manage treatment as prescribed. (d)(1) An IHP under this section shall be developed by a registered nurse (RN) in collaboration with the family, student, student's healthcare providers, and school personnel for the management of pancreatic insufficiency or cystic fibrosis while in school, participating in school-sponsored activities, and in transit to or from school or school-sponsored activities.

(2) The IHP shall be child-specific and shall address or include: (A) A written format for nursing assessment that includes health status, risks, concerns, and strengths; (B) Nursing diagnoses; (C) Interventions;

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SB 724 (D) Delegation; (E) Training; (F) Expected outcomes; and (G) Goals to: (i) Meet the healthcare needs of a student with pancreatic insufficiency or cystic fibrosis; and (ii) Protect the safety of all students from the misuse or abuse of medication. (e) With written authorization from the healthcare provider and parent, a student with pancreatic insufficiency or cystic fibrosis shall be allowed to carry and self-administer prescribed pancreatic enzymes.

SECTION 2. This act shall take effect July 1, 2015, the public welfare requiring it.

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PUBLIC CHAPTER NO. 325 SENATE BILL NO. 985

By Norris, Massey, Briggs, Crowe, Tate, Yager

Substituted for: House Bill No. 32

By Todd, Fitzhugh, Terry, Favors, Harry Brooks, Mark White, Hardaway, Smith, Powers, Sparks, Armstrong AN ACT to amend Tennessee Code Annotated, Title 68, relative to sudden cardiac arrest prevention.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 68, is amended by adding the following language as a new chapter 54: 68-54-1 01. This act shall be known and may be cited as the "Sudden Cardiac Arrest Prevention Act." 68-54-102. As used in this chapter, unless the context otherwise requires:

(1) "Community-based youth athletic activity" or "youth athletic activity" means an athletic activity organized by a city, county, business, or nonprofit organization when the majority of the participants are under eighteen (18) years of age, and are engaging in an organized athletic game or competition against another team, club, or entity or in practice or preparation for an organized game or competition against another team, club, or entity. "Community-based youth athletic activity" does not include college or university activities or an activity which is entered into for instructional purposes only, an athletic activity that is incidental to a nonathletic program, or a lesson; (2) "Department" means the department of health; (3) "Health care provider" means a Tennessee licensed medical doctor (M.D.) or an osteopathic physician (D.O.); (4) "Person" means any individual or governmental entity, corporation, association, organization, nonprofit institution, or other entity or such entities' representatives; and (5) "School youth athletic activity" means a school or a local education agency organized athletic activity when the majority of the participants are under eighteen (18) years of age, and are engaging in an organized athletic game or competition against another team, club, or entity or in practice or preparation for an organized game or competition against another team, club, or entity. "School youth athletic activity" does not include college or university activities, an activity which is entered into for instructional purposes only, or an athletic activity that is incidental to a nonathletic program, or a lesson.

68-54-103.

(a) This section applies to school youth athletic activity. (b)(1) The governing authority of each public and nonpublic elementary school, middle school, junior high school, and high school, working through

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SB 985 guidance approved by the department of health and communicated through the department of education, shall at a minimum: (A) Adopt guidelines and other pertinent information and forms as approved by the department of health to inform and educate coaches, school administrators, youth athletes, and their parents or guardians of the nature, risk, and symptoms of sudden cardiac arrest, including the risks associated with continuing to play or practice after experiencing any of the following symptoms: (i) Fainting or seizures during exercise; (ii) Unexplained shortness of breath; (iii) Chest pains; (iv) Dizziness; (v) Racing heart rate; or (vi) Extreme fatigue; (B) Require annual completion by all coaches, whether the coach is employed or a volunteer, and by school athletic directors of a sudden cardiac arrest education program approved by the department.

In developing the program, the department may use, at no cost to the state, materials and resources created by organizations, such as Simon's Fund, for the purpose of educating coaches about sudden cardiac arrest. The department shall make the sudden cardiac arrest education course program available on its web site for any school to access free of charge; (C) Require that, on a yearly basis, a sudden cardiac arrest information sheet be signed and returned by each coach and athletic director and, if appointed, a licensed health care professional, to the lead administrator of a nonpublic school or, for a public school, the local education agency's director of schools prior to initiating practice or competition for the year; (D) Require that, on a yearly basis, a sudden cardiac arrest information sheet be reviewed by each youth athlete and the athlete's parent or guardian. The information sheet shall be signed and returned by the youth athlete, if the youth athlete is eighteen (18) years of age or older, otherwise by the athlete's parent or guardian, prior to the youth athlete's initiating practice or competition, to confirm that both the parent or guardian and the youth athlete have reviewed the information and understand its contents; (E) Maintain all documentation of the completion of a sudden cardiac arrest education course program and signed sudden cardiac arrest information sheets for a period of three (3) years; (F) Establish as policy the immediate removal of any youth athlete who passes out or faints while participating in an athletic activity or immediately following an athletic activity, or who exhibits any of the following symptoms: (i) Unexplained shortness of breath; (ii) Chest pains; (iii) Dizziness; (iv) Racing heart rate; or (v) Extreme fatigue; and (G) Establish as policy that a youth athlete who has been removed from play shall not return to the practice or competition during which the youth athlete experienced symptoms consistent with sudden

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SB 985 cardiac arrest and not return to play or participate in any supervised team activities involving physical exertion, including games, competitions, or practices, until the youth athlete is evaluated by a health care provider and receives written clearance from the health care provider for a full or graduated return to play.

(2) After a youth athlete who has experienced symptoms consistent with sudden cardiac arrest has been evaluated and received clearance for a graduated return to play from a health care provider, then a school may allow a licensed health care professional, if available, with specific knowledge of the youth athlete's condition to manage the youth athlete's graduated return to play based upon the health care provider's recommendations. The licensed health care professional, if not the youth athlete's health care provider, shall provide updates to the health care provider on the progress of the youth athlete, if requested.

(3) No licensed health care professional or other person acting in good faith within the authority prescribed under this act shall be liable on account of any act or omission in good faith while so engaged; provided, that "good faith," as used in this act, shall not include willful misconduct, gross negligence, or reckless disregard. (c) The local education agency, in consultation with the head of the school youth athletic activity, may establish the following minimum penalties for a coach found in violation of ignoring a youth athlete's sudden cardiac arrest symptoms or allowing the youth to return to the practice or competition during which the youth athlete experienced the symptoms without written clearance from the health care provider for a full or graduated return to play: (1) For a first violation, suspension from coaching any school youth athletic activity for the remainder of the season; (2) For a second violation, suspension from coaching any school youth athletic activity for the remainder of the season and the next season; and (3) For a third violation, permanent suspension from coaching any school youth athletic activity.

68-54-104. (a) This section applies to community-based youth athletic activity. (b)(1) Any city, county, business, or nonprofit organization that organizes a community-based youth athletic activity for which an activity fee is charged, working through guidance from the department of health, shall at a minimum: (A) Adopt guidelines and other pertinent information and forms as developed by the department of health to inform and educate the director of the youth athletic activity, coaches, youth athletes, and their parents or guardians of the nature, risk, and symptoms of sudden cardiac arrest, including the risks associated with continuing to play or practice after experiencing any of the following symptoms: (i) Fainting or seizures during exercise; (ii) Unexplained shortness of breath; (iii) Chest pains; (iv) Dizziness; (v) Racing heart rate; or (vi) Extreme fatigue; (B) Require annual completion by all coaches, whether the coach is employed or a volunteer, and, if appointed, the licensed health care professional of a sudden cardiac arrest education program approved by the department. In developing the program, the department may use, at no cost to the state, materials and resources

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SB 985 created by organizations, such as Simon's Fund, for the purpose of educating coaches about sudden cardiac arrest. The department shall make the sudden cardiac arrest education course program available on its web site for any youth athletic activity operated by a city, county, business, or nonprofit organization to access free of charge; (C) Require that, on a yearly basis, a sudden cardiac arrest information sheet be signed and returned by each coach to the head of the youth athletic activity prior to initiating practice or competition for the year; (D) Require that, on a yearly basis, a sudden cardiac arrest information sheet be reviewed by each youth athlete and the athlete's parent or guardian. The information sheet shall be signed and returned by the youth athlete, if the youth athlete is eighteen (18) years of age or older, otherwise by the athlete's parent or guardian, prior to the youth athlete's initiating practice or competition, to confirm that both the parent or guardian and the youth athlete have reviewed the information and understand its contents; (E) Maintain all documentation of the completion of a sudden cardiac arrest education course program and signed sudden cardiac arrest information sheets for a period of three (3) years; (F) Establish as policy the immediate removal of any youth athlete who passes out or faints while participating in an athletic activity or immediately following an athletic activity, or who exhibits any of the following symptoms: (i) Unexplained shortness of breath; (ii) Chest pains; (iii) Dizziness; (iv) Racing heart rate; or (v) Extreme fatigue; and (G) Establish as policy that a youth athlete who has been removed from play shall not return to the practice or competition during which the youth athlete experienced symptoms consistent with sudden cardiac arrest and not return to play or participate in any supervised team activities involving physical exertion, including games, competitions, or practices, until the youth athlete is evaluated by a health care provider and receives written clearance from the health care provider for a full or graduated return to play.

(2) After a youth athlete who has experienced symptoms consistent with sudden cardiac arrest has been evaluated and received clearance for a graduated return to play from a health care provider, then the organizer of the community-based youth athletic activity may allow a licensed health care professional, if available, with specific knowledge of the youth athlete's condition to manage the youth athlete's graduated return to play based upon the health care provider's recommendations. The licensed health care professional, if not the youth athlete's health care provider, shall provide updates to the health care provider on the progress of the youth athlete, if requested.

(3) No coach, head of any athletic activity, licensed health care professional, or other person acting in good faith within the authority prescribed under this act shall be liable on account of any act or omission in good faith while so engaged; provided, that "good faith," as used in this act, shall not include willful misconduct, gross negligence, or reckless disregard. (c) The head of the community-based youth athletic activity may establish the following minimum penalties for a coach found in violation of ignoring a youth athlete's sudden cardiac arrest symptoms or allowing the youth to return to the practice or competition during which the youth athlete experienced the symptoms

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SB 985 without written clearance from the health care provider for a full or graduated return to play: (1) For a first violation, suspension from coaching any community足 based youth athletic activity for the remainder of the season; (2) For a second violation, suspension from coaching any community足 based youth athletic activity for the remainder of the season and the next season; and (3) For a third violation, permanent suspension from coaching any community-based youth athletic activity.

SECTION 2. This act shall take effect January 1, 2016, the public welfare requiring it.

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PUBLIC CHAPTER NO. 357 SENATE BILL NO. 537

By Gresham Substituted for: House Bill No. 567

By DeBerry, Turner, Hardaway, Parkinson, Mark White AN ACT to amend Tennessee Code Annotated, Title 49, Chapter 6, Part 60, relative to high school diplomas for children in foster care.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 49-6-6001, is amended by adding the following language as a new subsection: No LEA shall require any enrolling or transferring student, who is in grade eleven (11) or higher and in the custody of the department of children's services or exiting its custody, to meet more than the minimum requirements "for graduation set forth by the state board of education. The LEA shall issue a full diploma to any such student who meets the minimum requirements.

SECTION 2. This act shall take effect July 1, 2015, the public welfare requiring it.

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PUBLIC CHAPTER NO. 361 SENATE BILL NO. 588

By Tate, Bowling, Gardenhire, Harper

Substituted for: House Bill No. 735

By Love, Pitts, Beck, Shepard, Cooper, Towns, Akbari, Favors, Hardaway, Gilmore, Clemmons, Stewart AN ACT to amend Tennessee Code Annotated, Section 49-1-602, relative to priority schools.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 49-1-602(b), is amended by adding the following language as a new subdivision (3) and redesignating the subsequent subdivisions accordingly: (3) By October 1 of the year prior to the public identification of priority schools pursuant to subdivision (b)(1), the commissioner shall notify any school and its respective LEA if the school is among the bottom ten percent (10%) of schools in overall achievement as determined by the performance standards and other criteria set by the state board.

SECTION 2. This act shall take effect July 1, 2015, the public welfare requiring it.

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$)tate of {![enne.s.see PUBLIC CHAPTER NO. 423 HOUSE BILL NO. 1035

By Representatives Spivey, Forgety, Harwell, Lollar, Coley, Todd, McManus, Sanderson, Hulsey, Matheny, Shepard, Wirgau, McDaniel, Calfee, Kane, Womick, Powers, Hawk, Matlock, Jerry Sexton, Casada, Moody, Mark White, Marsh, Ramsey, Dawn White, Swann, Johnson, Dunn, Sargent, Byrd, Holt, Littleton, Hazlewood, Kumar, Carter, Harry Brooks, Faison, Wilburn, Eldridge, Butt, Lamberth, Kevin Brooks, Alexander, Smith, Travis, Sparks, Durham Substituted for: Senate Bill No. 1163

By Senators Bell, Massey, Bowling, Green, Hensley, Norris, Stevens, Tracy AN ACT to amend Tennessee Code Annotated, Title 49, relative to curriculum standards.

WHEREAS, the state board of education shall implement a process whereby the set of standards known as Common Core State Standards adopted in 2010 will be reviewed and shall be replaced with a new set of Tennessee standards adopted to meet or exceed the postsecondary and workforce needs of Tennessee students; and WHEREAS, these standards shall be adopted through an open, transparent process that allows all Tennesseans an opportunity to participate; and WHEREAS, these new Tennessee academic standards shall be adopted and fully implemented in Tennessee public schools in the 2017-2018 school year, at which time the previously adopted set of standards shall be rescinded; now, therefore, BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 49, Chapter 1, Part 3, is amended by adding the following language as a new section: (a) (1) The state board of education shall implement a process whereby the set of standards known as the Common Core State Standards adopted in 2010 will be reviewed and shall be replaced with new sets of standards adopted to fit the needs of Tennessee students. These postsecondary-and-workforce-ready standards shall be adopted through an open, transparent process that allows all Tennesseans an opportunity to participate. These standards shall be adopted and fully implemented in Tennessee public schools in the 2017-2018 school year.

(2) The state board of education or the department of education shall cancel any memorandum of understanding concerning the Common Core State Standards entered into with the National Governor's Association and the Council of Chief State School Officers. (b) As required by the current established process: (1) The state board shall appoint two (2) standards review and development committees. One (1) committee shall be an English language arts standards review and development committee, and one (1) committee shall be a mathematics standards review and development committee. Each committee shall be composed of two (2) representatives from institutions of higher education located in the state and six (6) educators who reside in the state and work in grades kindergarten through twelve (K-12);

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HB 1035 (2) The state board shall also appoint six (6) advisory teams. Three (3) advisory teams shall advise and assist the English language arts standards review and development committee, and three (3) advisory teams shall advise and assist the mathematics standards review and development committee. The advisory teams shall be structured by grade levels, so that one (1) advisory team reviews standards for kindergarten through grade five (K-5), one (1) for grades six through eight (6-8), and one (1) for grades nine through twelve (9-12) in each subject. Each advisory team shall be composed of one (1) representative from an institution of higher education located in the state and six (6) educators who reside in the state and work in the appropriate grade levels and subject; (3) The public's assistance in reviewing the current standards and suggesting changes to the current standards shall be elicited through a web site that shall allow comment by the public, as well as by educators, on the current standards. A third-party, independent educational resource, selected by the state board, shall collect all of the data and transmit all of the information gathered to the state board for dissemination to the appropriate advisory team for review and consideration; (4) Each advisory team shall review the current standards for its subject matter and grade level together with the comments and suggestions gathered from the public and educators. After an advisory team has conducted its review, the team shall make recommendations for changes to the current standards to the appropriate standards review and development committee; and (5) Each standards review and development committee shall review its advisory teams' reports and make recommendations for the new set of standards to the standards recommendation committee created in subsection (c). (c) There is created a standards recommendation committee. The committee shall be composed of ten (10) members. The governor shall appoint four (4) members, the speaker of the senate shall appoint three (3) members, and the speaker of the house of representatives shall appoint three (3) members. The standards recommendation committee shall review and evaluate the recommendations of the two (2) standards review and development committees and post the recommendations to the web site created pursuant to subdivision (b)(3) for the purpose of gathering additional feedback from the public. The standards recommendation committee shall make the final recommendations as to the new set of standards to the state board, which shall adopt sets of standards in English language arts and mathematics that fit the needs of Tennessee students in kindergarten through grade twelve (K-12). (d) Prior to the next adoption of academic standards in the subjects of science and social studies, the state board of education shall establish a process whereby the board shall receive recommendations from a standards recommendation committee appointed in the same manner as the standards recommendation committee created in subsection (c). The standards recommendation committee shall make the final recommendations as to the revision and replacement of the current sets of standards in these subject areas to the state board, which shall adopt sets of standards in science and social studies that fit the needs of Tennessee students in kindergarten through grade twelve (K-12); (e) Each LEA shall be responsible for developing and implementing the instructional programs under the state standards adopted by the state board that best fit its students' educational needs, that achieve levels of proficiency or advanced mastery, and that vigorously promote individual teacher creativity and autonomy. (f) All appointments made pursuant to subsection (c) for the standards recommendation committee shall be subject to confirmation by the senate and the house of representatives, but appointments shall be effective until adversely acted upon by the senate and the house of representatives. it.

SECTION 2. This act shall take effect upon becoming a law, the public welfare requiring

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PUBLIC CHAPTER NO. 431 SENATE BILL NO. 27

By Gresham, Ketron, Haile, Kelsey, Stevens, Bowling Substituted for: House Bill No. 138

By Moody, Kane, Holt, Weaver, Timothy Hill, Todd, Keisling, Daniel, Goins, Powers, Durham, Wilburn, Littleton, Lynn AN ACT to amend Tennessee Code Annotated, Title 49, to enact the "Individualized Education Act." BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 49, Chapter 10, is amended by adding Sections 2-7 as a new part.

SECTION 2. This part shall be known and may be cited as the "Individualized Education Act." SECTION 3. As used in this part, unless the context otherwise requires: (1) "Department" means the department of education; (2) "Eligible postsecondary institution" means a community college or university of the University of Tennessee system or the board of regents system or an accredited private postsecondary institution; (3) "Eligible student" means a resident of this state who: (A) Is a child with any of the following disabilities: (i) Autism; (ii) Deaf-blindness; (iii) Hearing impairments; (iv) Intellectual disability; (v) Orthopedic impairments; (vi) Traumatic brain injury; or (vii) Visual impairments; (8) Has an individualized education program (IEP) in effect at the time the department receives the request for participation in the program; and

(C) Meets at least one (1) of the following requirements: (i) Was previously enrolled in a Tennessee public school during the two (2) semesters immediately preceding the semester in which the student receives an individualized education account (IEA); (ii) Is attending a Tennessee public school for the first time; or

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8827 (iii) Received an individualized education account (IEA) in the previous school year; (4) "IEA" means an individualized education account; (5) "Parent" means the parent, legal guardian, person who has custody of the child, or person with caregiving authority for the child; (6) "Participating school" means a nonpublic school that meets the requirements established in this part and seeks to enroll eligible students; (7) "Participating student" means an eligible student whose parent is participating in the individualized education account (IEA) program; and (8) "Program" means the individualized education account (IEA) program created in this part.

SECTION 4. (a) A parent of an eligible student shall qualify to participate in the program if the parent signs an agreement promising: (1) To provide an education for the participating student in at least the subjects of reading, grammar, mathematics, social studies, and science; and (2) Not to enroll the parent's eligible student in a public school and to release the LEA in which the student resides and is zoned to attend from all obligations to educate the student. Participation in the program shall have the same effect as a parental refusal to consent to the receipt of services under 20 U.S.C. ยง 1414 of the Individuals with Disabilities Education Act (IDEA). (b) Parents shall agree to use the funds deposited in a participating student's IEA for any, or any combination, of the following expenses of the participating student: (1) Tuition or fees at a participating school; (2) Textbooks required by a participating school; (3) Tutoring services provided by a tutor accredited by a state, regional, or national accrediting organization; (4) Payment for purchase of curriculum, including any supplemental materials required by the curriculum; (5) Fees for transportation paid to a fee-for-service transportation provider; (6) Tuition or fees for a nonpublic online learning program or course; (7) Fees for nationally standardized norm-referenced achievement tests, Advanced Placement examinations, or any examinations related to college or university admission; (8) Contributions to a Coverdell education savings account established under 26 U.S.C. ยง 530 for the benefit of the participating student, except that funds used for elementary or secondary education expenses shall be for expenses otherwise allowed under this section; (9) Educational therapies or services for participating students from a licensed or accredited practitioner or provider, including licensed or accredited paraprofessionals or educational aides; (10) Services provided under a contract with a public school, including individual classes and extracurricular programs; (11) Tuition or fees at an eligible postsecondary institution; (12) Textbooks required for courses at an eligible postsecondary institution; (13) Fees for the management of the IEA by private financial management firms; or

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SB 27 (14) Computer hardware or other technological devices approved by the department or a physician, if the computer hardware or other technological device is used for the student's educational needs. (c) Parents may make payments for the costs of educational programs and services not covered by the funds in their IEA. (d) Parents are encouraged, when selecting appropriate educational placements for their students, to consider participating schools with inclusive educational settings that educate students with disabilities and students without disabilities together. A participating school shall notify the department whether the school provides inclusive educational settings.

The department shall indicate those schools that provide inclusive educational settings in its posting of participating schools on its web site under subdivision (a)(7) of Section 6. (e) For participating students in grades three through eight (3-8), a parent shall ensure that the student is annually administered either a nationally norm-referenced test identified by the department or the Tennessee comprehensive assessment program (TCAP) tests or any future replacements of the TCAP tests. The tests should, at a minimum, measure learning in mathematics and English language arts. Results of the testing shall be reported to the parent. Students with disabilities for whom standardized testing is not appropriate, as determined on the student's IEP, are exempt from this requirement. (f) For purposes of continuity of educational attainment, a student who enrolls in the program shall remain eligible until the participating student returns to a public school, graduates from high school, or reaches twenty-two (22) years of age by August 15 for the next school year, whichever occurs first. (g) Notwithstanding subdivision (a)(2) that requires a parent to agree not to enroll the parent's eligible student in a public school, a participating student may return to the student's LEA at any time after enrolling in the program in compliance with rules promulgated by the state board of education. The state board of education shall promulgate rules providing the least disruptive process for the return of a participating student to the student's LEA. Upon a participating student's return to the student's LEA, the student's IEA shall be closed, and any remaining funds shall be returned to the state treasurer to be placed in the basic education program (BEP) account of the education trust fund of 1992 under §§ 49-3-357 and 49-3-358. (h) Any funds remaining in a student's IEA upon graduation from high school may be used to attend or take courses from an eligible postsecondary institution, with qualifying expenses subject to the applicable conditions of subsection (b). (i) Upon a participating student's graduation from a postsecondary institution or after any period of four (4) consecutive years after high school graduation in which the student is not enrolled in an eligible postsecondary institution, the participating student's IEA shall be closed, and any remaining funds shall be returned to the state treasurer to be placed in the basic education program (BEP) account of the education trust fund of 1992 under §§ 49-3357 and 49-3-358.

U) Funds received pursuant to this part do not constitute income taxable to the parent of the participating student or to the student under title 67, chapter 2.

SECTION 5. (a) A school, private tutor, eligible postsecondary institution, or other educational provider that serves a participating student shall not refund, rebate, or share funds from an IEA with a parent or participating student in any manner. The funds in an IEA may be used only for educational purposes. Participating schools, postsecondary institutions, and education providers that enroll participating students shall provide parents with a receipt for all qualifying expenses at the school or institution. shall:

(b) To ensure that students are treated fairly and kept safe, all participating schools (1) Comply with all health and safety laws or codes that apply to nonpublic schools; (2) Certify that they shall not discriminate against students or applicants on the basis of race, color, or national origin; and (3) Conduct criminal background checks on employees. The participating school then shall:

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8827 (A) Exclude from employment any person not permitted by state law to work in a nonpublic school; and (B) Exclude from employment any person who might reasonably pose a threat to the safety of students. (c) The department may suspend or terminate a school from participating in the program, if the department determines the school has failed to comply with the requirements of this section. If the department suspends or terminates a school's participation, the department shall notify affected participating students and their parents of the decision. If a participating school is suspended or if a participating school withdraws from the program, affected participating students remain eligible to participate in the program.

SECTION 6. (a) In administering the IEA program, the department shall: (1) Remit funds to a participating student's IEA account on a quarte�ly basis.

Any funds awarded under this part shall be the entitlement of only the eligible student under the supervision of the student's parent. The maximum annual amount to which an eligible student is entitled under this part shall be equal to the amount representing the per pupil state and local funds generated and required through the basic education program (BEP) for the LEA in which the student resides and is zoned to attend plus the special education funds from the BEP that the participating student would otherwise be entitled to under the student's particular IEP. For the purpose of funding calculations, each eligible student who participates in the program shall be counted in the enrollment figures for the LEA in which the student resides and is zoned to attend. The IEA funds shall be subtracted from the state funds otherwise payable to the LEA; (2)(A) Create a standard form that a parent of a student may submit to establish the student's eligibility for an IEA. The department shall make the supplication application readily available to interested families through various sources, including the Internet; and (B) In accordance with state board of education rules promulgated in consultation with the department of education and the department of health, create an application and approval process for nonpublic schools and providers to become participating schools and participating providers; (3) Establish application and participation timelines that shall maximize student and school participation; (4) Provide parents of participating students with a written explanation of the allowable uses of IEAs, the responsibilities of parents, and the duties of the department; (5) Ensure that lower-income families are made aware of the program and their children's potential eligibility; (6) Adopt policies necessary for the administration of the IEA program, including: (A) Policies for conducting or contracting for random, quarterly, and annual reviews of accounts; (B) Policies for establishing or contracting for the establishment of an online anonymous fraud reporting service; and (C) Policies for establishing an anonymous telephone hotline for reporting fraud; and (7) Post on its web site a list of participating schools for each school year, the grades taught in the school. and other information that the department determines shall assist parents in selecting participating schools for their children. (b) The department may deduct an amount up to four percent (4%) from appropriations used to fund IEAs to cover the costs of overseeing the funds and administering the program.

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SB27 (c) In compliance with all state and federal student privacy laws, an LEA shall provide a participating school that has admitted an eligible student under this part with a complete copy of the student's school records in the possession of the LEA. SECTION 7. (a) A participating school is autonomous and not an agent of the state or federal government. (b) Neither the department nor any other state agency may regulate in any way the educational program of a participating nonpublic school or education provider that accepts funds from the parent of a participating student. (c) The creation of the individualized education account (IEA) program does not expand the regulatory authority of the state, its officers, or any LEA to impose any additional regulation of nonpublic schools or education providers beyond those necessary to enforce the requirements of the program. (d) Participating nonpublic schools and education providers shall be given the maximum freedom to provide for the educational needs of their students without governmental control. Neither a participating nonpublic school nor an education provider shall be required to alter its creed, practices, admissions policies, or curriculum in order to accept participating students. (e) In any legal proceeding challenging the application of this part to a participating school, the state bears the burden of establishing that the law is necessary and does not impose any undue burden on participating schools.

SECTION 8. The state board is authorized to promulgate rules, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to effectuate the purposes of this part; provided, that the state board shall not promulgate any emergency rule, pursuant to 搂 4-5208, for the implementation of this part prior to August 1, 2016.

SECTION 9. If any provision of this act or its application to any person or circumstance is held invalid, then such invalidity shall not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to that end the provisions of this act shall be severable.

SECTION 10. This act shall take effect upon becoming a law for purposes of promulgating rules and procedures, the public welfare requiring it. For all other purposes, including development by the department of education of administrative procedures to effectuate the first award of individualized education accounts during the 2016-2017 school year, this act shall take effect January 1, 2016, the public welfare requiring it.

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PUBLIC CHAPTER NO. 493 SENATE BILL NO. 604

By Norris, Crowe, Haile

Substituted for: House Bill No. 645

By McCormick, Kevin Brooks, Hazlewood, Todd, Lynn, Littleton, Durham AN ACT to amend Tennessee Code Annotated, Title 9, Chapter 8, to enact the Educator Protection Act. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 9, Chapter 8, is amended by adding the following language as a new, appropriately designated part: 9-8-501. This part shall be known and may be cited as "The Educator Protection Act of 2015."

9-8-502. The purpose of this part is to create the Tennessee educator liability fund to provide excess professional liability insurance coverage for all teachers and student teachers, subject to the appropriations of the general assembly. The fund shall protect against damages for claims arising out of the performance of teachers' and student teachers' duties within the scope of their employment or assignment. The fund shall be administered by the board of claims.

9-8-503.

(a) As used in this part, unless the context otherwise requires: (1) "Fund" means the Tennessee educator liability fund; (2) "Student teacher" means an individual enrolled as a student in an institution of higher education approved by the state board of education for teacher training, who is jointly assigned by the institution of higher education and either a local board of education or a charter school to teach under the direction of a licensed teacher employed by the local board of education or the charter school.

(3) "Teacher": (A) Means any individual employed by a local board of education in a position that requires a license issued by the department of education for service in public elementary and secondary schools of this state, supported, in whole or in part, by local, state, or federal funds; and (B) Includes an individual employed at a public charter school in a position that requires a license issued by the department of education for service in a public elementary and secondary school of this state. (b) For the purposes of this part, teachers and student teachers shall not be considered "state employees" as defined in ยง 8-42-101.

9-8-504.

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SB604 (a) The Tennessee educator liability fund shall be established as a separate account in the state treasury and shall be separate and apart from the risk management fund established byยง 9-8-109. (b) The fund shall be funded from appropriations by the general assembly, and shall include interest earned on the appropriated money. Appropriations to the fund may be adjusted based on the number of claims filed and amounts paid from the fund. Amounts remaining in the fund at the end of each fiscal year, including interest, shall not revert to the general fund. (c) Moneys in the fund shall be invested by the state treasurer pursuant to chapter 4, part 6, of this title, for the sole benefit of the fund.

9-8-505. (a) Notwithstanding any provision of law to the contrary and in addition to the board of claims' authority set forth inยง 9-8-108, the board of claims is authorized to: (1) Establish the type or types of insurance and the insurance limits as excess insurance coverage necessary to carry out the purposes of this part; (2) Purchase or procure the insurance policy or policies with the fund as the insured; (3) Establish the effective date for which insurance coverage will be provided; (4) Enter into contracts with financial consultants, actuaries, auditors, investment managers, individual attorneys, law firms, and other consultants and professionals as necessary to effectuate the purposes of this part; (5) Establish the process for the administration of claims filed pursuant to this part; (6) Recommend annually to the commissioner of finance and administration the total occurrence basis funding required to satisfy the liabilities arising under this part; and (7) Promulgate rules that are necessary to carry out the purpose and intent of this part.

9-8-506. (a) Coverage provided under this part shall automatically cover all full-time and part-time teachers and student teachers at no cost to the teachers or student teachers. (b) The expenses paid from the fund shall include the costs associated with the administration of the fund, including, but not limited to, any insurance policy, policies, or contracts that may be authorized by the board of claims. (c) Pursuant to this part, the insurance policy or policies that may be purchased or procured, and the contracts that may be executed, shall cover incidents that have occurred on or after the effective date of this act.

SECTION 2. If any provision of this act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to that end, the provisions of this act are declared to be severable.

SECTION 3. This act shall take effect upon becoming a law, the public welfare requiring it.

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$)tate of Z!rennessee PUBLIC CHAPTER NO. 499 HOUSE BILL NO. 10

By Representatives McCormick, Parkinson, Lollar, Reedy, Kumar, Rogers, Kevin Brooks, Weaver, Pody, Hardaway, Marsh, Hazlewood, Powers, Mark White, Camper, Carter, Littleton, Lynn, McManus, Butt, Akbari, Favors, Sparks, Kane, Miller, Johnson, Daniel Substituted for: Senate Bill No. 10

By Senators Norris, Kelsey, Stevens AN ACT to amend Tennessee Code Annotated, Title 49, Chapter 1; Title 49, Chapter 2 and Title 49, Chapter 6, relative to civics education.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 49, Chapter 6, Part 4, is amended by adding the following language as a new section: (a) Beginning January 1, 2017, except as provided in subsection (c), a student, during the student's high school career, shall be given a United States civics test composed of questions from the one hundred (100) questions that are set forth within the civics test administered by the United States citizenship and immigration services to persons seeking to become naturalized citizens. (b) An LEA shall prepare a test for its students composed of at least twenty-five (25) questions and no more than fifty (50) questions from those questions described in subsection (a). The LEA may prepare multiple versions of the test for use in different schools and at different times. (c) A public high school may provide each student with the opportunity to take the test as many times as necessary for the student to pass the test. A student who has an individualized education program (IEP) under which the civics test is determined to be an inappropriate requirement for the student shall not be required to take and pass the civics test. (d) A student shall pass the test if the student correctly answers at least seventy percent (70%) of the questions. (e) A school all of whose seniors receiving a regular diploma, except for those exempted from taking the test under subsection (c), make a passing grade on the United States civics test required under subsection (a) shall be recognized on the department's web site as a United States civics all-star school for that school year.

SECTION 2. This act shall take effect January 1, 2017, the public welfare requiring it.

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~tate of 'Qtenne.s.see PUBLIC CHAPTER NO. 501 HOUSE BILL NO. 174

By Representative Butt Substituted for: Senate Bill No. 182

By Senator Hensley

AN ACT to amend Tennessee Code Annotated, Title 37 and Title 49, Chapter 6, relative to student discipline.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 49, Chapter 6, is amended by adding the following language as a new, appropriately designated part: (a) As used in this section: (1) "Director of schools" or "director" means the director of schools, or the director's designee, in the county, city, town, or special school district; (2) "Expel" or "expulsion" means removal from attendance for more than ten (10) consecutive days or more than fifteen (15) days in a month of school attendance; (3) "Principal": (A) Means the administrative head of a public school, by whatever title the person may be known; and (B) Includes the principal, principal-teacher, assistant principal, or principal's designee; (4) "Remand" means assignment to an alternative school; and (5) "Violent felony" has the same meaning as defined inยง 40-35-321 (e). (b) Upon the issuance of a criminal complaint charging a student with a violent felony or upon the issuance of a violent felony delinquency complaint against a student, the director of schools of a school in which the student is enrolled may expel or remand the student to an alternative school for a period of time determined appropriate by the director of schools if the director determines that the student's continued presence in school would have a substantial detrimental effect on the general welfare of the school. (c) Upon a student being convicted of a violent felony or upon an adjudication or admission in court of guilt with respect to a violent felony or violent felony delinquency, the director of schools of a school in which the student is enrolled shall expel the student if the director of schools determines that the student's continued presence in school would have a substantial detrimental effect on the general welfare of the school. (d) Upon the occurrence of subsection (b) or (c), the director of schools shall immediately give written or actual notice to the parent or guardian and the student of the right to appeal the decision to expel or remand the student to an alternative school. All appeals shall be filed, orally or in writing, within five (5) days after receipt of the notice and may be filed by the parent or guardian, the student, or any person holding a teaching license who is employed by the school system if requested by the student. (e) The appeal from this decision shall be to the board of education or to a disciplinary hearing authority appointed by the board. The disciplinary hearing authority,

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HB 174

if appointed, shall consist of at least one (1) licensed employee of the LEA, but no more than the number of members of the local board. (f) The hearing shall be held no later than ten (10) days after the beginning of the expulsion or remand. The local board of education or the disciplinary hearing authority shall give written notice of the time and place of the hearing to the parent or guardian, the student, principal, and director of schools who ordered the expulsion or remand.

Notice shall also be given to the LEA employee referred to in subsection (d) who requests a hearing on behalf of a student who is expelled or remanded. (g) After the hearing, the board of education or the disciplinary hearing authority may affirm the decision of the director of schools, order removal of the expulsion, remand unconditionally, or, upon such terms and conditions as it deems reasonable, assign the student to an alternative program or night school, or suspend the student for a specified period of time. (h) If the decision is determined by a disciplinary hearing authority, a written record of the proceedings, including a summary of the facts and the reasons supporting the decision, shall be made by the disciplinary hearing authority. The student or principal may, within five (5) days of the decision, request review by the board of education; provided, that local school board policy may require an appeal to the director of schools prior to a request for review to the board. Absent a timely appeal, the decision shall be final. The board of education, based upon a review of the record, may grant or deny a request for a board hearing and may affirm or overturn the decision of the disciplinary hearing authority with or without a hearing before the board; provided, that the board may not impose a more severe penalty than that imposed by the disciplinary hearing authority without first providing an opportunity for a hearing before the board. If the board conducts a hearing as a result of a request for review by a student, principal, principal­ teacher, or assistant principal, then, notwithstanding the open meetings laws compiled in title 8, chapter 44, or other law to the contrary, the hearing shall be closed to the public, unless the student or student's parent or guardian requests in writing within five (5) days after receipt of written notice of the hearing that the hearing be conducted as an open meeting. If the board conducts a hearing as a result of a request for review by a student or principal that is closed to the public, then the board shall not conduct any business, discuss any subject, or take a vote on any matter other than the appeal to be heard.

Nothing in this subsection (h) shall exclude the department of children's services from the disciplinary hearings when the department is exercising its obligations under§ 37-1140. The action of the board of education shall be final. (i) In the event the expulsion or remand occurs during the last ten (10) days of any term or semester, the student may be permitted to take final examinations or submit required work that is necessary to complete the course of instruction for that term or semester, subject to the action of the director or the final action of the board of education upon any appeal from an order of a principal continuing an expulsion or remand.

0) The director of schools shall have the sole authority to readmit a student who is expelled or remanded to an alternative school pursuant to subsection (b) or (c) to the school in which the student was enrolled prior to the expulsion or remand. (k) Nothing in this section shall require an LEA to enroll a student who is expelled or remanded in an LEA in either this state or another state. The director of schools for the school system in which the expelled or remanded student requests enrollment shall make a recommendation to the local board of education to approve or deny the request.

The recommendation shall occur only after investigation of the facts surrounding the expulsion or remand from the former school system. If the recommendation is to deny admission and if the local board approves the director of schools' recommendation, the director of schools shall, on behalf of the board of education, notify the commissioner of the decision. Nothing in this subsection (k) shall affect children in state custody or their enrollment in any LEA. Any LEA that accepts enrollment of a student from another LEA may dismiss the student if it is determined subsequent to enrollment that the student had been expelled or remanded by the other LEA.

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HB 174 (I) Nothing in this section shall interfere with requirements or consultations between the juvenile, the court, and an LEA pursuant to title 37 if the court finds a juvenile to be delinquent as a result of an act pursuant toยง 37-1-131.

SECTION 2. Tennessee Code Annotated, Section 49-6-3401(a)(14), is amended by deleting the subdivision and substituting instead the following: Off campus criminal behavior that results in the student being legally charged with an offense that would be classified as a felony if the student was charged as an adult or if adjudicated delinquent for an offense that would be classified as a felony if the student was an adult, or if the student was convicted of a felony, and the student's continued presence in school poses a danger to persons or property or disrupts the educational process. Notwithstanding ยง 37-1-131 or any other law to the contrary, the principal of the school in which the student is enrolled and the director of schools shall determine the appropriate educational assignment for the student released for readmission.

SECTION 3. This act shall take effect July 1, 2015, the public welfare requiring it, and shall apply to any violent felonies or violent felony delinquency acts occurring on or after that date.

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~tatc of \[cnncsscc PUBLIC CHAPTER NO. 507 HOUSE BILL NO. 473

By Representatives Harry Brooks, McCormick Substituted for: Senate Bill No. 293

By Senator Gresham AN ACT to amend Tennessee Code Annotated, Title 49, relative to K-12 education.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 49-13-106(a), is amended by adding the following language as a new subdivision (3): (3)

(A) Charter schools authorized by the achievement school district shall conduct an initial student application period of at least thirty (30) days. During this period, all students zoned to attend or currently enrolled in a school that is eligible to be placed in the achievement school district may enroll. If, at the end of the initial student enrollment period, the number of eligible students seeking to be enrolled does not exceed the school's capacity or the capacity of a program, class, grade level, or building, then the charter school may enroll the child or children of a teacher, staff member, sponsor, or member of the governing body as well as students identified in subdivisions (b)(1)(C)(ii), (iii), and (iv) and in accordance with enrollment provisions contained in the charter agreement; provided, however, that no school's total enrollment of such students shall exceed twenty-five percent (25%) of the total school enrollment.

(B) Upon acquiring sufficient data to achieve a student achievement growth score as represented by the Tennessee Value-Added Assessment System (TVAAS), a charter school authorized by the ASD may not enroll additional students identified in subdivisions (b)(1)(C)(ii), (iii), and (iv) as permitted in subdivision (a)(3)(A) unless the school demonstrates student achievement growth at a level of "at expectations" or above. This restriction shall not affect students previously enrolled pursuant to subdivision (a)(3)(A).

SECTION 2. Tennessee Code Annotated, Section 49-13-106(a)(2), is amended by designating the existing language as subdivision (A) and adding the following language as subdivision (B): (8) If the achievement school district (ASD) authorizes a charter school under ยง 49-1-614, the ASD shall receive an annual authorizer fee of up to three percent (3%) of the charter school's per student state and local funding as allocated under ยง 49-13112(a). By May 1 of each year, the commissioner shall set the percentage of a charter school's per student state and local funding that the ASD shall receive as the annual authorizer fee for the next school year.

SECTION 3. This act shall take effect July 1, 2015, the public welfare requiring it.

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When Rights Arenâ&#x20AC;&#x2122;t Civil: A Discussion of Board/Board Member Exposure in Civil Rights Lawsuits

Emily mack, Attorney Lewis, Thomason, King, Krieg & Waldrop P.C.

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WHEN RIGHTS AREN’T CIVIL: Board/Board Member Exposure in Civil Rights Lawsuits Chris W. McCarty & Emily H. Mack What is § 1983?1 § 1983 is a method for recovering damages in tort for a deprivation of Constitutional rights.2 The statute was passed in 1871 as part of a larger piece of legislation focused on quelling the violence of the Ku Klux Klan which, at the time, was running rampant through the Southern States.3 The purpose of the statute is to provide a federal remedy in situations where state law allows for an abridgement of a citizen’s federal rights.4 § 1983 does not create any right on its own; it merely provides a vehicle for recovery when one is deprived of certain preexisting rights.5 § 1983 provides, in relevant part, as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . .6 What Rights are Covered Under § 1983?

By its terms, Section 1983 can be used to remedy the deprivation of “rights” secured by the Constitution, federal statutes, and regulations implementing those statutes. Constitutional 1

42 U.S.C. § 1983.

See Monroe v. Pape, 365 U.S. 167, 170 (1961).

3 See id. at 173.

4 See id.

5 See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979).

6 42 U.S.C. § 1983.

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provisions that are enforceable by a private party under Section 1983 consist of those which create personal rights and either explicitly apply to the states, or have been held to apply to the states by operation of the Fourteenth Amendment.

Whether a statutorily created “right” exists poses a more difficult question because not every federal law creates a “right” enforceable by a private plaintiff.7 Three principal factors determine whether a statutory provision creates a privately enforceable right: (1) whether the plaintiff is an intended beneficiary of the statute; (2) whether the plaintiff’s asserted interests are not so vague and amorphous as to be beyond the competence of the judiciary to enforce; and (3) whether the statute imposes a binding obligation on the State.8 After these inquiries, a fourth arises: (4) did Congress create a comprehensive mechanism for enforcing the statute which implies that it intended to deny a private right of action?9 Once a plaintiff demonstrates that a statute confers an “unambiguously conferred right,” the right is presumptively enforceable by Section 1983.10 Who can be held Liable Under § 1983?

The purpose of §1983 is to deter “state actors” from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.11 As such, to establish liability against a private individual, the court must determine that the person was a state actor — that his or her behavior over which suit is brought was effectively the action of the state. The principal inquiry in determining whether a private

7

Gonzaga Univ. v. Doe, 536 U.S. 273, 276 (2002) (recognizing that “where a statute provides no indication that Congress intends to create new individual rights, there is no basis for a private suit under § 1983.”).

8 Blessing v. Freestone, 520 U.S. 329, 332 (1997).

9 Id. 10 Gonzaga Univ., 536 U.S. at 284.

11 See Wyatt v. Cole, 504 U.S. 158 (1992).

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party’s actions constitute “state action” under the Fourteenth Amendment is whether the party’s actions may be “fairly attributable to the state.”12 Initially municipalities were not considered to be persons for § 1983 purposes, and thus were not subject to liability under this statute.13 However, in Monell v. Department of Social Services, the Supreme Court held that municipalities and local government organizations, including local education agencies (“LEAs”), are considered “persons” for § 1983 purposes.14 Under the Monell doctrine, an LEA cannot be held liable under respondeat superior for an injury inflicted solely by its employees or officers.15 Instead, LEAs will only be subject to liability under § 1983 when a “policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers,” is the direct cause of the deprivation of a citizen’s right.16 Since LEAs can act only through natural persons, the critical question in determining whether the LEA will be subject to liability is whether the person committing the act did so pursuant to official policy.17 A formally adopted policy is not required—established usage or custom may be sufficient.18 An LEA may also be subject to liability for actions taken by officials who have “final policymaking authority.”19 Whether an individual has final policymaking authority is determined under state law, and requires that the decision-maker possess final authority to establish municipal policy with respect to the action ordered.20 The fact that a particular official, even a

12

See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982).

See Monroe v. Pape, 365 U.S. 167, 188 (1961) (holding that § 1983 was not intended to apply to municipalities or government units).

14 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); see also Memphis Police Dept. v. Garner, 471 U.S. 1 (1985) (noting that “[a]s a division of local government, the Board of Education may be sued directly”).

15 Monell, 436 U.S. at 691.

16 Id. at 690.

17 Adkins v. Board of Educ., 982 F.2d 952, 957 (6th Cir. 1993).

18 Id. at 690-91.

19 See City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988).

20 Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (footnotes and internal citations omitted).

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policymaking official, has discretion in the exercise of particular functions does not, without more, make them a “final policymaker” or give rise to municipal liability based on an exercise of that discretion. Rather, the official must also be responsible for establishing final government policy over such activity before the municipality can be held liable.21 School officials and elected board members may be sued for constitutional violations in their official capacity and in their personal, or individual, capacity.22 However, only a suit brought against a school official or board member in his or her individual capacity will subject that individual to personal liability for monetary damages.23 When an official or board member is named as a defendant in his or her official capacity, it is simply another way of stating a cause of action against the board of education itself.24 Thus, as long as the board of education receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the board.

What is Absolute Legislative Immunity and How Does it Pertain to School Officials?

Absolute legislative immunity provides unconditional immunity from liability and suit.

This type of immunity is generally extended to board members and school officials performing legislative functions and attaches to “all actions taken in the sphere of legitimate legislative activity.”25 Activities to which this type of immunity typically applies include actions taken by board members in introducing, debating, and voting on board policies or actions. Budgetmaking is another “quintessential legislative activity” to which this immunity attaches.26

21

Id. See Kentucky v. Graham, 473 U.S. 159, 165 (1985).

23 Id.; see Banks v. Breathitt Cnty. Bd. of Educ., 925 F. Supp. 2d 856, 860-61 (E.D. Ky. 2013).

24 Id. 25 Meier v. Cnty. of Presque Isle, No. 07-13760-BC, 2008 WL 2117603, at *4 (E.D. Mich. May 20, 2008); see also Tenney, v. Brandhove, 341 U.S. 367, 377 (1951) (holding that “[t]he privilege would be of little value if [legislators] could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazards of a judgment against them based upon a jury’s speculation as to motive”).

26 Raetree v. Rockett, 852 F.2d 946, 950–951 (7th Cir. 1988).

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For instance, in Smith v. Jefferson County Board of School Commissioners, the Sixth Circuit held that legislative immunity shielded Section 1983 claims asserted by teachers against individual school board members after their job positions were eliminated for budgetary reasons.27 In finding legislative immunity to be applicable, the court noted that the board members were engaged in legislative activity when they eliminated an alternative school, and job positions of those working there, from the budget. Id. It is important to note, however, that personnel decisions such as terminating an individual employee are normally not considered legislative acts and therefore, are not entitled to legislative immunity.28 What is Qualified Immunity and How Does it Pertain to School Officials?

Qualified immunity is a defense to § 1983 liability whereby a local official is shielded from liability insofar as his or her discretionary actions did not violate a clearly established right of which a reasonable person would have been aware.29 To determine whether a right is “clearly established,” such that qualified immunity is defeated, courts look to decisions of the United States Supreme Court, then to decisions of the Sixth Circuit and courts within the Sixth Circuit, and last to decisions of other circuits.30 If the law creating the alleged right was not clearly established at the time of the official’s action, then the official will be shielded from individual liability, although injunctive relief may still be granted.31 Once the defense of qualified immunity is invoked, the plaintiff bears the burden of showing that the constitutional right allegedly violated was clearly established at the time of the challenged conduct.

27

641 F.3d 197, 217 (6th Cir. 2011).

See Raetree 852 F.2d 946, at 951 (noting that employment decisions are generally considered administrative acts, not entitled to immunity).

29 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

30 Ciminillo v. Streicher, 434 F.3d 461, 468 (6th Cir. 2006).

31 Id. 28

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In Wood v. Strickland, the United States Supreme Court specifically extended the protection of qualified good-faith immunity to school board members.32 In doing so, the Court noted that “liability for damages for every action which is found subsequently to have been violative of a student’s constitutional rights and to have caused compensable injury would unfairly impose upon the school decisionmaker the burden of mistakes made in good faith in the course of exercising his discretion within the scope of his official duties.”33 It further recognized that school board members, among other duties, must judge whether there have been violations of school regulations and, if so, the appropriate sanctions for the violations. As such, the Court found that denying any measure of immunity and allowing the imposition of monetary costs for mistakes which were reasonable in the light of all the circumstances would “undoubtedly deter even the most conscientious school decisionmaker from exercising his judgment independently, forcefully, and in a manner best serving the long-term interest of the school and the students.”34 Significantly, the qualified immunity doctrine provides immunity to school officials and board members not only from damages, but also from the litigation itself.35 It is also important to note that qualified immunity is not an available defense in a § 1983 action against a board of education, or against a board member or school offiicial sued in his or her “official capacity.”

This defense can only be invoked by officials sued in their individual capacities.36 Neither a

32

Wood v. Strickland, 420 U.S. 308, 309 (U.S. 1975), overruled in part, on other grounds by Harlow, 457 U.S. at 800.

33 Id. at 319.

34 Id. 35 Siegert v. Gilley, 500 U.S. 226, 232 (1991) (providing that “[o]ne of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit”); accord Everson v. Leis, 556 F.3d 484, 491 (6th Cir. 2009) (recognizing that “immunity is intended not only to protect officials from civil damages, but just as importantly, to protect them from the rigors of litigation itself, including the potential disruptiveness of discovery”).

36 Owen v. City of Independence, 455 U.S. 622, 657 (1980).

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municipality nor an LEA is entitled to assert the defense of qualified immunity in an officialcapacity case or an action against the school board itself.37 Damages Under § 1983 A plaintiff who alleges the violation of a constitutional right is not entitled to compensatory damages unless he can prove actual injury caused by the violation.38 However, when it is difficult to quantify precisely the damages caused by that injury, presumed damages may be awarded.

In cases with difficult-to-establish injuries, presumed damages roughly

approximate the harm that the plaintiff suffered and thereby compensate for harms that may be impossible to measure.39 In cases where the plaintiff suffers a deprivation of a constitutional right, but lacks proof that he or she experienced an “actual injury” arising from that deprivation, § 1983 allows for nominal damages which serve as “a symbolic recognition of harm that may be awarded without proof of actual harm.”40 Punitive damages are permissible in a § 1983 claim.41 Punitive damages are only appropriate in a § 1983 action “when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.”42 Because punitive damages are a mechanism for punishing the defendant for “willful or malicious conduct,” they may be granted only on a showing of the requisite intent.

Although punitive damages are permitted in a § 1983 claim, punitive damages may not be sought in a case where a claim is being made against a municipal government or a government unit.43

37

Id. King v. Zamiara, Nos. 13-1766/13-177, 2015 U.S. App. LEXIS 9022, *11 (6th Cir. June 1, 2015) (citing Carey v. Piphus, 435 U.S. 247, 264 (1978)).

39 See Id. 40 Pagan v. Village of Glendale, 559 F.3d 477, 478 n.1 (6th Cir. 2009).

41 Smith v. Wade, 461 U.S. 30, 35 (1983).

42 Id. 43 See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981).

38

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Thus, in both suits against school boards and against school officials in their official capacity, punitive damages are not an appropriate remedy.

Lastly, it is appropriate for the court to award the prevailing party in a § 1983 suit their attorney costs and fees.44 Common § 1983 Claims made Against School Boards and School Officials Although there is a laundry list of rights protected by § 1983, not all of these rights are commonly the basis for a § 1983 action brought against school officials or an LEA. Rather, there are a handful of rights which form the majority of § 1983 claims against school boards.

Equal Protection Equal Protection is provided for by the Fourteenth Amendment which reads “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”45 In essence, an Equal Protection violation occurs when an individual is discriminated against or treated differently based on their membership in a protected class (i.e. race, color, religion, sex, gender, national origin). The Equal Protection clause is often invoked when a plaintiff brings a discrimination action, including lawsuits arising from peer-to-peer harassment, 46 bullying, 47 or employment discrimination lawsuit.48 Due Process Due Process is a right guaranteed by the Fourteenth Amendment in a clause providing that “nor shall any State deprive any person of life, liberty, or property without due process of

44

See Belcher v. Robertson County, 2014 U.S. Dist. LEXIS 165238 at * 35 (M.D. Tenn. Nov. 26, 2104).

U.S. CONST. amend. XIV § 1.

46 See Murrell v. School Dist. No. 1, 186 F.3d 1238 (10th Cir. 1999).

47 See Nabozny v. Podlesny, 92 F.3d 446, 454 (7th Cir. 1996) (holding that district was liable as plaintiff’s bullying was based on his membership in a protected class and that administration responded differently because of Plaintiff’s class status).

48 See Hunt v. Cent. Consol. Sch. Dist., 951 F. Supp.2d 1136 (D.N.M. 2013).

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law.”49 A procedural due process violation occurs when an individual’s life, liberty, or property is taken from them without sufficient investigatory or legal proceedings. Procedural due process claims often arise from disciplinary actions taken against students or teachers.

Substantive due process bars certain government actions regardless of the fairness of the procedures used to implement them. Claims based on substantive due process often implicate the “state-created-danger” theory of constitutional liability under § 1983, which is predicated upon affirmative acts by school officials which either create or increase the risk that an individual will be exposed to private acts of violence.50 Allegations of physical injury or harm to students, including sexual or physcial assault against students, harassment and bullying are also commonly brought under a due process theory.51 In these types of cases, the student often seeks to hold the school administrators individually liable for constitutional injury caused by someone else. In these situations, the Sixth Circuit requires the plaintiff to establish that the administrator was “deliberately indifferent” to the constitutional rights of students.52 This is a very high standard that requires evidence that the administor “participated, encouraged, authorized or acquiesced in the offending conduct.”53 Fourth Amendment This amendment protects an individual’s right to privacy and guards against unreasonable searches and seizures by government officials. Typical claims involve those based on drug

49

U.S. CONST. amend. XIV § 1.

McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 464 (6th Cir. 2006).

51 See e.g. Doe v. Claiborne Cnty., 103 F.3d 495 (6th Cir. 1996) (holding that the Due Process Clause of the Fourteenth Amendment protects the right of a child to be free from sexual abuse inflicted by a public school teacher); but see Lillard v. Shelby County Bd. of Educ. 76 F.3d 716 (6th Cir. 1996)(Teacher’s single slap of student, which did not result in physical injury while potentially battery under state law, did not rise to level of constitutional violation of student’s substantive due process rights, and thus was not actionable under § 1983).

52 Id. at 439.

53 Id. 50

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testing policies, or unreasonable search of student’s person or belongings.54 Detaining a student or interviewing them in certain situations, especially where an SRO or police officer is involved, may also infringe upon the right to be free from unreasaonble seizures.

First Amendment § 1983 claims may also be made against school officials under allegations that a student’s or employee’s free speech was infringed.55 § 1983 claims are also made against schools based on the Free Exercise Clause, which gurantees students the freedom to express their personal religious beliefs.56 Claims based on the Free Exercise Clause frequently involve school prayer in the classroom and during extracurricular activities. Additionally, a § 1983 claim may be made against the school under the Establishment Clause, which prohibits school districts from taking any actions that could be viewed to be an endorsement of religion. Claims based on the Establishment Clause include religious objections to educational curriculum and the teaching and strudy of religion; the celebration of religious holidays in schools; and access to school facilities by students and community groups for religious purposes. First Amendement claims also arise in the context of actions taken in relation to student grooming and attire, curriculum, student publications and organizations, and discipline for off-campus speech.

54

See New Jersey v. T.L.O., 469 U.S. 325 (1985); see also See Bethel Sch. Dist. V. Fraser, 478 U.S. 675 (1986) (treating Free Speech restriction as a colorable § 1983 claim against a school but finding one did not occur).

56 See Rosa-Ruiz v. Gonzalez-Gallofin, 2007 U.S. Dist. LEXIS 69905 (D.P.R. Sept. 20, 2007).

55

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When Rights Aren’t Civil:

Exposure in Civil Rights Lawsuits

Chris W. McCarty Emily H. Mack Lewis Thomason

The Question When lawsuits are threatened or discussed, we consistently hear one question from board members, administrators and teachers alike: – “Am I going to lose my house?”

In almost any situation, the answer is, “No.” But how do we reach that conclusion?

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Common Theories School systems often get sued under a number of theories, including, but not limited to: – – – –

Discrimination; Harassment; Negligence; Bullying.

In 99.9% of lawsuits involving the above-claims, individual school system employees or board members will have no personal exposure.

Instead, the plaintiffs and their attorneys hope for recovery from the school system itself and/or the system’s insurance carrier.

Civil Rights Claims But what happens when a student, a parent or a citizen claims that the school system deprived him/her of constitutional rights?

– He/she can sue under 42 U.S.C. § 1983.

– Also known as a “1983 claim.”

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Common Constitutional Rights Free Speech

Freedom of Religion

Freedom of the Press

Peaceful Assembly

Keep/Bear Arms

Reasonable Search/Seizure

Due Process

Self-Incrimination

Private Property

Trial by Jury

Cruel/Unusual Punishment

Etc.

1983 Claims What does 42 U.S.C. § 1983 say?

– “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law…”

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1983 Principle But what is the actual point of the statute?

– Deterring public officials or state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.

1983 Defendants Under a 1983 claim, a plaintiff can: – Sue the school system; AND/OR

– Sue school officials or board members.

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Official v. Individual Capacity When a school official or a board member is sued, we see this in the caption: – John Doe, in his individual capacity; – John Doe, in his official capacity; OR – John Doe, in his official and individual capacities

Official = Suing the school system Individual = Suing the official/member

Capacity Example We recently received a school-related suit involving constitutional rights with the following caption: Individual

Official

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1983 Liability Under a 1983 theory, a school system will only be subject to liability when a “policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers,” is the direct cause of the deprivation of a citizen’s right. ~ Adkins v. Board of Educ., 982 F.2d 952, 957 (6th Cir. 1993).

1983 Liability The critical question in determining 1983 liability is: – Did the person committing the alleged act do so pursuant to official policy or custom?

A school system could also be liable for the actions of an official with “final policymaking authority.” ~ City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988).

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Individual Immunity School officials and board members usually possess immunity from liability/suit.

• Legislative Immunity commonly applies to actions taken in the sphere of legitimate legislative activity (e.g., budgeting, debating, introducing, and voting on policies or other actions).

• Qualified Immunity commonly applies when the action of a school official or board member did not violate a clearly established right of which a reasonable person would have been aware.

Qualified Immunity The United States Supreme Court applied qualified immunity to school board members in Wood v.

Strickland, 420 U.S. 308, 309 (U.S. 1975): – Denying any immunity and allowing monetary costs for mistakes which were reasonable in the light of all the circumstances would “undoubtedly deter even the most conscientious school decisionmaker from exercising his judgment independently, forcefully, and in a manner best serving the long-term interest of the school and the students.”

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Translation If you are using good sense, and acting in good faith, it is extremely hard to be hit with personal liability for actions performed as a school official or board member.

Immunity Application Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir. Tex. 1994), offers an approach to qualified immunity and personal liability in a case involving a principal was sued after a teacher molested a student.

According to the 5th Circuit Court of Appeals, a principal/supervisor could be “held personally liable for a teacher’s violation of a student's constitutional right to bodily integrity” if it is established that: 1. the principal learned of facts or a pattern of inappropriate sexual behavior by a subordinate pointing plainly toward the conclusion that the subordinate was sexually abusing the student; AND 2. the principal demonstrated deliberate indifference toward the constitutional rights of the student by failing to take action that was obviously necessary to prevent or stop the abuse; AND 3. such failure caused a constitutional injury to the student.

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Immunity Application Schreffler v. Mitchell, 2005 U.S. Dist. LEXIS 900 (D. Del. 2005), offers an approach to qualified immunity and personal liability in a case involving the rights of a system employee.

The Plaintiff, Carol Schreffler, an Assistant Superintendent, assisted state investigators and conducted a personal review of the Superintendent’s travel reimbursement requests and related expenses.

The investigation led to criminal charges and the Superintendent’s retirement. The Plaintiff served as Acting Superintendent during the candidate search, but someone else was eventually chosen as the permanent Superintendent.

The Plaintiff claimed she was passed over due to board members holding a grudge over the investigation. The parties and the court agreed that, if board members “made the decision not to promote [the Plaintiff] because of her protected activity on matters of public concern, [those board members] would not be entitled to qualified immunity.”

Translation When making decisions as a school official or a board member, just remember to stay away from the three R’s: – Retribution; – Retaliation; – Revenge.

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QUESTIONS???

Memphis Office

Nashville Office

Knoxville Office

(901) 525-8721 40 S. Main St. #2900 Memphis, TN 38103

(615) 259-1366 424 Church St. Suite 2500 PO Box 198615 Nashville, TN 37219

(865) 546-4646 620 Market St. 5th Floor PO Box 2425 Knoxville, TN 37901

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Whose Fault is it Anyway?

School System Liability Issues

Robert G. Wheeler, Attorney

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SCHOOL SYSTEM LIABILITY ISSUES IN ACCIDENT CASES Rob Wheeler ____________________________ T.C.A. 49-2-203 (b)(4)(A) No member of the board or other school official shall be held liable in damages for any injury to person or property resulting from the use of school buildings or property; ____________________________ T.C.A. 29-20-101 et. seq. -- Governmental Tort Liability Act (3) (A) "Governmental entity" means any political subdivision of the state of Tennessee including, but not limited to, any municipality, metropolitan government, county, utility district, school district, nonprofit volunteer fire department receiving funds appropriated by a county legislative body or a legislative body of a municipality, human resource agency, community action agency or nonprofit corporation that administers the Head Start or Community Service Block Grant programs, public building authority, and development district created and existing pursuant to the constitution and laws of Tennessee, or any instrumentality of government created by any one (1) or more of the named local governmental entities or by an act of the general assembly; ____________________________________ (4) "Injury" means death, injury to a person, damage to or loss of property or any other injury that one may suffer to one's person, or estate, that would be actionable if inflicted by a private person or such person's agent. ____________________________ 29-20-112. Immunity of local board of education and school officials for activities outside of regularly scheduled school activities on premises of public schools. (a) For purposes of this section: (1) "Premises" means any and all real property, natural or artificial landscape or waterway thereon, building, bathroom, gymnasium, facility, track, playground, tennis or badminton court, horseshoe pit,

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bleachers, stage, or other improvement erected on the premises for recreational purposes; (2) "Recreational activity" means any activity undertaken for exercise, pleasure, or other recreational purposes including, but not limited to, basketball, football, soccer, baseball, softball, tennis, lacrosse, running, walking, wrestling, cheerleading, taekwondo, karate, community gardening and music lessons; and (3) "Recreational joint use agreement" means a written authorization by a local board of education or a school official permitting a public or private entity to access the premises of a public school for the purpose of conducting or engaging in recreational activity and addressing conditions under which the permission is granted. ______________________________ Under the planning-operational test, decisions that rise to the level of planning or policy-making are considered discretionary acts which do not give rise to tort liability, while decisions that are merely operational are not considered discretionary acts and, therefore, do not give rise to immunity.

Bowers v. City of Chattanooga -_________________________ (b) (1) Except as provided in subdivision (b)(3), neither a local board of education nor a school official owes a duty of care to keep the premises of a public school safe for entry or use by others outside of regularly scheduled school activities or to give warning of unknown dangerous or hazardous conditions, uses, structures or activities on the premises.

(2) Unless otherwise specified in the agreement, if a recreational activity is conducted pursuant to a recreational joint use agreement, the local board of education or school official entering the agreement does not owe a greater duty of care than that which is owed under subdivision (b)(1). ______________________________ (3) Notwithstanding the duty of care or duty to warn owed pursuant to this subsection (b), the immunity conferred upon a local board of education or school official by the recreational joint use agreement shall not apply to a person who is injured or suffers property damage

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on school property pursuant to such agreement if the injury or damage was proximately caused by the gross negligence, or willful, wanton or malicious conduct of the local board of education or school official. ___________________________ (c) Where a local board of education or school official enters a recreational joint use agreement, with respect to persons accessing the premises for recreational activity pursuant to that agreement, neither the local board of education nor a school official shall be construed to have: (1) Waived any immunity under this chapter; (2) Extended immunity under this chapter to another entity; (3) Extended any assurance to any person or entity accessing the premises that the premises are safe for any other purpose than that which is agreed upon; (4) Conferred upon a person the legal status of a person to whom a duty of care is owed; ___________________________ (d) When entering into a recreational joint use agreement under rules, regulations, and conditions prescribed by the local board of education pursuant to ยง 49-2-203(b)(4), the general assembly encourages local boards of education and school officials to require, in the agreement, that the other entity maintain and provide proof of adequate liability and accident insurance coverage as determined by insurance industry standards, and to address, in the agreement, issues including, but not limited to, security, adult supervision of recreational activity, prohibited activity, hours of operation, use of equipment, maintenance, and damage to the premises. Any such joint use agreement entered into shall contain notice of the immunity provided by this section. (e) This section shall apply to contracts entered or renewed on or after July 1, 2011. ___________________________________

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School premises accident cases are normally filed under the theory of negligence. Negligence has its own definition. and that definition always includes the word “duty”. ___________________________________ § 3.05 DEFINITION OF NEGLIGENCE Negligence is the failure to use ordinary or reasonable care. It is either doing something that a reasonably careful person would not do, or the failure to do something that a reasonably careful person would do, under all of the circumstances in this case. The mere happening of an injury or accident does not, in and of itself, prove negligence.

A person may assume that every other person will use reasonable care, unless a reasonably careful person has cause for thinking otherwise. _________________________

We simply owe a duty to each other to act reasonably under the circumstances then and there existing, and we have a duty not to do things that will potentially harm others. The word “potentially” imputes another term that is the watchword in negligence cases: ______________________________ FORESEEABILITY Foreseeability is the test for negligence, and the inquiry is whether defendant's conduct created an unreasonable risk of harm to plaintiff. Spivey v. St. Thomas Hosp., 31 Tenn. App. 12, 211 S.W.2d 450 (1947); Lancaster v. Montesi, 216 Tenn. 50, 390 S.W.2d 217 (1965).

The risk involved is that which is foreseeable; a risk is foreseeable if a reasonable person could foresee the probability of its occurrence or if the person was on notice that the likelihood of danger to the party to whom is owed a duty is probable. Foreseeability is the test of negligence. Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994). _________________________________________

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WALLACE GLENN ROBERTS, JR., Plaintiff/Appellant, v. ROBERTSON COUNTY BOARD OF EDUCATION, JEROME ELLIS, Superintendent of Schools, STEVE MOSS, and WILLIAM BALLARD, Defendants/Appellees, v. WILLIAM EDWARD YOUNT, Third Party Defendant [NO NUMBER IN ORIGINAL] Court of Appeals of Tennessee, Middle Section, at Nashville 692 S.W.2d 863; 1985 Tenn. App. LEXIS 2802 April 11, 1985 A fourteen year old freshman was in a voc. rehab./shop class.

There were 23 other students in the class. Teacher had been teaching the class 9 years. He did not rely on a written lesson plan, but, rather, his “philosophy on learning students” was -- “I just go historically day to day. After so many years, it just sort of falls in. And there are some old lesson books there, maybe ten, twelve years old. Every once in a while you will thumb through and pick up where you left off.”

The students on this day were working with a drill press. The student wanted to make a lamp stand for his family for Christmas. It was just before the holidays. The work required a much longer drill bit than the students normally used. The teacher kept that one in his desk drawer. The teacher gave the drill bit to the student and told him to wait until he, the teacher, got back in the room. The student testified that the teacher told him to go ahead. Regardless, the teacher then left the room. After waiting ten minutes for the teacher to return, the student proceeded to apply the wood to the press.

Another student, Roberts, was asked to help hold the wood as the press was applied. Roberts knelt down to make sure it was held appropriately. The bit was not fastened tightly enough – “…. The drill bit caused a long cut and skull fracture from Roberts’ right temple to behind his right ear.” The teacher did not know what happened until someone came and got him.

“Teachers and local school districts arenot expected to be insurers of the safety of students while they are at school. Nor are teachers expected in every case in every instance to supervise all the activities of all students at all times. Teachers …….. are required to exercise such care as ordinarily reasonable and prudent person would exercise under the same or similar circumstances.” “….. we do not impose upon [teachers] the duty to anticipate or foresee the hundreds of unexpected student acts that occur daily in our public schools. However, we have no hesitation in holding a

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teacher or local school system to the duty of safeguarding students while at school from reasonably foreseeable dangerous conditions including the dangerous acts to fellow students.”

“Based on our review of the record, we conclude that the evidence supports a finding that the teacher was negligent and that his failure to furnish adequate instruction and supervision to his vocational agriculture students was the proximate cause of Roberts’ injuries.” ________________________________

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DONALD A. CADORETTE and LYNEE CADORETTE, as parents and next friend of MICHAEL TODD CADORETTE, Plaintiffs/Appellants v.SUMNER COUNTY BOARD OF EDUCATION and SUMNER COUNTY, TENNESSEE, Defendants/Appellees NO. 01A01-9510-CV-00441 COURT OF APPEALS OF TENNESSEE, MIDDLE SECTION, AT NASHVILLE 1996 Tenn. App. LEXIS 239 April 19, 1996, FILED Beech High student suffered a head injury during an art class.

The student, a 15 years old ninth grade student, volunteered to model while others sketched him. He fainted and fell off a table he was standing on while modeling.

In examining the record we note that the injury in this suit did not involve a dangerous instrumentality as it did in the Robertson County case. Here, we have an outgoing and vigorously healthy fifteen year old who volunteered to stand on a table and model for his art class. There is no evidence that the table was unsteady, nor is there any proof that the student indicated that he was in any way ill, or physically unable to perform the task. Even after taking into consideration that fact that the student stood on a four-foot high table, thereby increasing the “gravity of the possible harm, “ we cannot say that the “falling type injury,” is foreseeable when viewing the record as a whole. _________________________________________

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JOYCE ANN NEAL, Individually and as parent and next of kin of the minor child, BRANDON DEVORIS NEAL, Plaintiff/Appellant, VS. FAYETTE COUNTY BOARD OF EDUCATION, DALE SUMMITT, Superintendent of Schools, WILLIAM A. WEDDLE, Principal of Northwest Elementary School, JEAN BELLE, Teacher, Defendants/Appellees.

Appeal No. 02A01-9412-CV-00271 COURT OF APPEALS OF TENNESSEE, WESTERN SECTION, AT JACKSON 1996 Tenn. App. LEXIS 276 May 9, 1996, FILE The student, age eleven, was injured while playing basketball and attempting to dunk when his little finger became lodged in a crevice in the goal, and, as a result, his finger was partially amputated above the first joint. In support of his case, the student relied heavily upon the fact that two students had previously suffered similar injuries on the goal. The teacher was standing about twelve feet from the goal at the time of the injury.

Reasoning that the goal was neither dangerous nor defective and that the student caused his own injuries through his misuse of the goal, the trial court held in favor of the school board. The Court of Appeals sustained that ruling as well as saying that any negligence on the part of the Board is without merit â&#x20AC;&#x201C; â&#x20AC;&#x153;Finally, any alleged negligence on the part of the defendant in failing to remove the goal after the pervious injuries would not be actionable because the decision whether to remove the goal would be a discretionary function for which governmental immunity is not removed.

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LANE DENSON, a minor, b/n/f JOHN DENSON, father, and DEBORAH DENSON, mother; and JOHN DENSON and wife, DEBORAH DENSON, individually, Plaintiffs/Appellants, VS. DR. RICHARD C. BENJAMIN, Director of Schools for the Metropolitan Nashville Public Schools; FLORENCE KIDD, A Director of Middle Schools Responsible for Walter Stokes Middle School; EVALINA CHEADLE, Principal of Walter Stokes Middle School; METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE FOR THE METROPOLITAN NASHVILLE PUBLIC SCHOOLS; and METROPOLITAN BOARD OF PUBLIC EDUCATION, Defendants/Appellee.

Appeal No. 01-A-01-9810-CV-00571 COURT OF APPEALS OF TENNESSEE, MIDDLE SECTION, AT NASHVILLE 1999 Tenn. App. LEXIS 561 August 12, 1999, Filed Two middle schools students were teasing each other in the cafeteria. As they went upstairs to change classes Chris tripped Lane by deliberately grabbing his ankle, causing Lane to fall backwards down the stairs. Lane was found at the foot of the stairs face-down and unconscious in a pool of blood. He was diagnosed as having a concussion, broken nose, and “other injuries.”

There were hall monitors at the time of the incident. The parents argued that “that the defendant’s agents were negligent in not posting an ‘educational professional’ on the stairwell during the change of classes. While this might conceivable have prevented Lane’s injury, it is self-evident that teachers cannot be everywhere at once. Moving a teacher from one location in the hallway to another would still leave a gap where students would have the opportunity, however briefly, for making mischief.

Upon the argument that Chris should have been separated from the other students, the Court held, “It is often stated that hindsight is 20/20. However, school administrators do not have the benefit of hindsight when they make decisions about the children in their care.

Of course, the law defines negligence by the standard of foreseeability, not that of hindsight.” Judgment for the defendants. __________________________________

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RICKY LEE WILSON, and KIMBERLY WILSON, as guardians and next friends of BRANDON WILSON, a minor, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, TOM MADDOX, TIMOTHY JOHN McKNIGHT and JUSTIN LEJUAN DUNNIGAN No. M2008-00327-COA-R3-CV COURT OF APPEALS OF TENNESSEE, AT NASHVILLE 2009 Tenn. App. LEXIS 25 September 9, 2008, Session January 27, 2009, Filed The minor plaintiff and his parents sued for damages for serious bodily injury resulting from an assault, and at the conclusion of the trial the Trial Judge held the defendants liable for the injuries and awarded damages. The defendants have appealed, insisting the assault was not foreseeable. We affirm the Judgment of the Trial Court.

OPINION Plaintiffs, Ricky Lee Wilson and Kimberly Wilson, as guardians and next friends of [*2] Brandon Wilson, brought this action against the Metropolitan Government and certain employees asserting claims of personal injury and Government Tort Liability Act claims.

The Complaint identified Maddox as a school bus driver, and that Brandon Wilson was riding the bus on November 4, 2005, when he was attacked by McKnight and Dunnigan, resulting in severe personal injuries. He alleged that Maddox was guilty of negligence/recklessness in failing to take action to prevent harm to Wilson.

Brandon Wilson testified that the bus was not crowded, and as a fire truck [*3] went by he said, "fire, fire", and Timothy McKnight turned around and told him to "shut the f up". He testified that McKnight then walked back to him, and Dunnigan followed. Wilson testified that he was scared, and had never spoken to the pair before. He said that McKnight began to pick on him and "put him in his place" for the next 3 or 4 minutes. He said that McKnight was cussing him and calling him names, and Wilson told him to just leave him alone and he didn't want to fight. Wilson testified that he told McKnight to go back to his seat and he did, and Wilson then turned around to talk to his friends about what had happened. Less than a minute later he saw Dunnigan walking back toward him. Wilson testified that one of his friends had his legs in the aisle and Dunnigan told him to move them, and when the friend refused, Dunnigan kicked his legs out of the

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way. Wilson testified that Dunnigan then hit him 3 times, and then got off the bus. He had not anticipated that Dunnigan was going to assault him. He than testified to the seriousness of his injuries.

Wilson testified that he had ridden Maddox's bus all semester and had seen students standing, throwing things and cussing, and [*4] that Maddox did nothing.

Robert Epley testified that he was a driver supervisor with Metro, and at the time of the incident, he was Maddox's supervisor. He testified that he had reviewed the tape in this case.

Epley testified that drivers were trained to glance at all their mirrors in a constant rotation, and that part of the rotation was to check on the students in their rearview mirror. Epley testified that Maddox should have been able to see Wilson where he was sitting on the day in question, and that if a driver noticed a student stand and move toward [*5] the back of the bus and begin picking on another student, the driver should ask the student to be seated, and if the student did not comply, the driver should stop the bus and address the situation.

The driver Tom Maddox testified that he had been a bus driver since 1990. He testified that it was not uncommon for the kids to get up and move around on the bus, to swap seats to be with friends. He testified that he did not always tell the students to sit down, and if he did, they didn't always obey. He testified that violence on the bus was rare, that there was nothing to make him think that Dunnigan would attack Wilson on the day in question, and that he had not had any prior problems with McKnight. Maddox testified that he did not see Dunnigan as being involved in the first altercation between McKnight and Wilson, and that [*7] he did see McKnight leave his seat, but he could not constantly monitor him because he had to keep his eyes on the road. Maddox testified he did not think there was a problem until he saw the finger-pointing, but he did not say anything because he was concentrating on driving the bus, and did not "think it was that big of a problem". He thought that when McKnight sat down, the problem was over.

Maddox testified that he did not hear a female student addressing him, and could not really hear what she was saying, and that he did not hear the student say anything about "they're going to bust his head".

Maddox testified that he did not see Dunnigan get up and move toward the back of the bus right before his stop, and did not see him

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back there until right about the time he hit Wilson,and that the attack came as a complete surprise to Maddox.

Maddox admitted that he saw McKnight messing with Wilson on the day in question, and that it went on for 2 or 3 minutes, and that he saw the finger-pointing, and that he heard a girl sitting behind him saying something in a raised voice. Maddox admitted that he appreciated the fact that Wilson might be in danger, but he did not say anything, and reiterated [*8] that he did not see Dunnigan get up and move toward the back of the bus, but admitted that if it took forty seconds for him to do so, he probably should have seen him in that time frame.

The Trial Court entered judgment and granted the motion for default against McKnight and Dunnigan, since they had not answered or appeared, and the Court found that Metro owed a duty of care to Wilson, and that the bus driver was supposed to enforce discipline on the bus. The Court found that the attack was foreseeable, because when McKnight and Dunnigan approached Wilsonthe first time, McKnight engaged in aggressive physical contact. The Court found that a student sitting behind Maddox warned him, and that Maddox allowed kids to stand and walk around the bus in violation of policy. The Court found the driver owed a duty to protect Wilson from foreseeable harm, but failed to restrain McKnight or Dunnigan. The Court noted that the video showed that Maddox did nothing to control the students, and thus Metro breached its duty. The Court awarded compensatory damages of $ 8,309.00 for Wilson's medical bills, and awarded damages for the significant injuries in the amount of $ 35,000.00.

Metro appealed.

Appellants argue that the attack on Wilson was not foreseeable and there was no proximate cause. Appellants argue that Tennessee follows a conservative foreseeability approach, whereby student misconduct is not to be anticipated absent proof of prior misconduct, citing Mason v. Metropolitan Government, 189 S.W.3d 217 (Tenn. Ct. App. 2005).

In this case, however, the facts are distinguished from the above cases, because there was an immediate threat, and an interval where preventative measures could have been taken before the following act of aggression. In this case there was a larger student who was seen to be threatening and assaulting a smaller, weaker student and the tape shows that this behavior went [*11] on for at least three minutes without warning or other admonishment by the bus driver. The video

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also shows that during the entire time of this altercation, Dunnigan, McKnight's known friend, is standing or sitting right behind him and "backing him up". The boys return to their seats and then shortly thereafter, both boys stand and walked again to Wilson, and spent almost a minute standing in the aisle before Dunnigan suddenly attacked Wilson and then exited the bus. The evidence demonstrates that a reasonable person would know or should have known that Wilson was in danger prior to the attack.

We affirm the Judgment of the Trial Court and assess the cost of the appeal to the Appellants.

HERSCHEL PICKENS FRANKS, P.J. ________________________________

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HOLLI THACKER HANEY, ET AL. v. BRADLEY COUNTY BOARD OF EDUCATION, ET AL. No. E2003-02531-COA-R3-CV COURT OF APPEALS OF TENNESSEE, AT KNOXVILLE 160 S.W.3d 886; 2004 Tenn. App. LEXIS 607 June 9, 2004, Argued September 20, 2004, Filed [*888] Holli Thacker Haney ("Plaintiff") had two children who attended Michigan Avenue Elementary School (the "School") inBradley County. Plaintiff's husband, Tracy Thacker ("Thacker"), was not the biological father of the oldest child, but he was the biological father of the youngest child. Thacker filed for divorce, and he and Plaintiff were in sharp disagreement over custody matters. Apparently believing he was [**2] going to lose on the custody issues, on the morning of December 12, 2000, Thacker went to the School and signed out both children. The School required Thacker to provide a written explanation as to why the children were being signed out.

Thacker wrote "Keeping Promise by Mother" and "Pay Back" as his reasons for signing out the children. School employees did not read what Thacker had written prior to allowing him to leave the premises with the children. Tragically, Thacker then murdered both young children. Plaintiff sued the Bradley County Board of Education asserting claims of negligence and negligence per se based on the School's allowing Thacker to sign out the children and leave the School with them on December 12. The Trial Court granted the Board of Education's motion for summary judgment. We affirm in part, reverse in part, and remand for further proceedings.

We have already noted that schools, teachers, and administrators have a duty to exercise ordinary care for the safety of their students. See Snider, 855 S.W.2d at 590; Roberts, 692 S.W.2d at 870. What is considered "ordinary care" is not a fixed standard and evolves over time along with the law under which it is defined. Like many other aspects of society, our nation's school systems have been forced to react to the changing times. Locker searches and policies prohibiting drugs and weapons were relatively unheard of if not nonexistent in the not-so-distant past. Now, school's are in court defending the legality of so-called zero tolerance policies. The words Columbine High School have taken on a separate meaning unto themselves, along with Oklahoma City and September 11th.

While School employees required Thacker to provide an explanation for the early dismissal, the obvious problem is that no one

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everread that explanation prior to allowing Thacker to leave with the children. It is difficult to image the rationale behind a policy which requires someone to provide an explanation before they are allowed to engage in an affirmative [**35] act, but then does not require that explanation be read before the person is allowed to [*899] engage in that act. Because the Policy requires a written explanation before any parent can sign out their child, we believe it is implicit in that Policy that the reason actually be read beforethe parent and child leave. We conclude that the Policy was not complied with when Thacker provided the required written explanation for signing out the children, but was allowed to leave without anyone from the school having read that explanation. Even if the School's failure to read Thacker's explanation was not a violation of the Policy, we nevertheless hold that the School's duty to exercise reasonable care for the safety of its students requires the School to read even a parent's explanation for signing out his or her children before they are allowed to leave. ________________________________ Bradley County case where a student wanted off the bus before his regular stop; walked to the front and asked the driver to let him off so he could go to his grandmother; the driver said no, he had to get off at his regular stop; he turned around, dropped an â&#x20AC;&#x153;Fâ&#x20AC;? bomb, went toward the back of the bus, lowered the window and jumped out to his death. _________________________ Whose Fault Is It Anyway? _________________________ IT DEPENDS!!!!! ______________________________________

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90

You Think You Can Take My Cell Phone? How School Adminsitrators May Restrict On/Off Campus Speech

Charles Purcell and Chris Hayden, Attorneys Purcell, Sellers & Craig

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92

In The Supreme Court of the United States 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) TINKER, v.

DES MOINES SCHOOL DISTRICT. Summary: A small group of teen-aged students in Des Moines planned to wear black armbands to classes to protest the war in Vietnam. Hearing about the plan, school principals decided to forbid wearing armbands and to suspend students who disobeyed the order. Several students defied the principals' edict and were suspended. Their families sought an injunction from a U.S. district court forbidding the principals and the school district to discipline the children for their symbolic protest. The parents lost in the district court. That decision was affirmed by an equally divided court of appeals. The parents sought and obtained certiorari from the Supreme Court.

In The Supreme Court of the United States 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) NEW JERSEY, v.

T.L.O. Summary: We granted certiorari in this case to examine the appropriate-ness of the exclusionary rule as a remedy for searches carried out in violation of the Fourth Amendment by public school authorities. Our consideration of the proper application of the Fourth Amendment to the public schools, however, has led us to conclude that the search that gave rise to the case now before us did not violate the Fourth Amendment. Accordingly, we here address only the questions of the proper standard for assessing the legality of searches conducted by public school officials and the application of that standard to the facts of this case.

93

In The Supreme Court of the United States No.13–132, June 25, 2013 RILEY, v.

CALIFORNIA Summary: In No. 13–132, petitioner Riley was stopped for a traffic violation, which eventually led to his arrest on weapons charges. An officer searching Riley incident to the arrest seized a cell phone from Riley’s pants pocket. The officer accessed information on the phone and noticed the repeated use of a term associated with a street gang. At the police station two hours later, a detective specializing in gangs further examined the phone’s digital contents. Based in part on photographs and videos that the detective found, the State charged Riley in connection with a shooting that had occurred a few weeks earlier and sought an enhanced sentence based on Riley’s gang membership. Riley moved to suppress all evidence that the police had obtained from his cell phone. The trial court denied the motion, and Riley was convicted. The California Court of Appeal affirmed. In No. 13–212, respondent Wurie was arrested after police observed him participate in an apparent drug sale. At the police station, the officers seized a cell phone from Wurie’s person and noticed that the phone was receiving multiple calls from a source identified as “my house” on its external screen. The officers opened the phone, accessed its call log, determined the number associated with the “my house” label, and traced that number to what they suspected was Wurie’s apartment. They secured a search warrant and found drugs, a firearm and ammunition, and cash in the ensuing search. Wurie was then charged with drug and firearm offenses. He moved to suppress the evidence obtained from the search of the apartment. The District Court denied the motion, and Wurie was convicted. The First Circuit reversed the denial of the motion to suppress and vacated the relevant convictions.

Held: The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.

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In The United States Court Of Appeals For The Fifth Circuit No. 12-60264, December 12, 2014 TAYLOR BELL; DORA BELL, Plaintiff, v.

ITAWAMBA COUNTY SCHOOL BOARD; TERESA MCNEECE, Superintendent of Education for Itawamba County, individually and in her official capacity; TRAE WIYGUL, Principal of Itawamba Agricultural High School, individually and in his official capacity, Defendant.

Summary: This appeal raises a First Amendment challenge to a public high school student’s suspension and transfer to alternative school for his off-campus posting on the Internet of a rap song criticizing, with vulgar and violent lyrics, two named male athletic coaches for sexually harassing female students at his school. The aspiring student rapper, Taylor Bell, composed the song off campus, recorded it at a professional studio unaffiliated with the school, and posted it on his Facebook page and on YouTube using his personal computer while at home. Bell had never before been charged with a serious school disciplinary violation. After the disciplinary action was imposed and affirmed by the Itawamba County School Board, Bell and his mother, Dora Bell, sued the School Board, its Superintendent, and the school’s Principal, for violation of Bell’s freedom of speech under the First Amendment and Dora Bell’s substantive-due-process right to parental authority under the Fourteenth Amendment. Upon cross-motions for summary judgment, the district court rendered summary judgment for the School Board and its officials. The Bells appealed.

We reverse the district court’s judgment in favor of the School Board against Taylor Bell and render summary judgment against the School Board in favor of Taylor Bell, awarding him nominal damages as prayed for, and other relief, for the Board’s violation of his First Amendment right to freedom of speech. The summary-judgment evidence and materials establish that Bell composed and recorded his rap song completely off campus; that he used his home computer to post it on the Internet during non-school hours; and that the School Board did not demonstrate that Bell’s song caused a substantial disruption of school work or discipline, or that school officials reasonably could have forecasted such a disruption. Otherwise, the district court’s grant of summary judgment in favor of Defendants-Appellees against Dora Bell is affirmed, as well as the district court’s summary judgment for the individual school officials.

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United States District Court, E.D. Missouri, Southeastern Division 30 F.Supp.2d 1175 (1998) Brandon BEUSSINK, by and through his parent and next friend, Nadean Beussink, Plaintiff, v.

WOODLAND R-IV SCHOOL DISTRICT, Defendant.

Summary: This matter is before the Court on plaintiff's request for a preliminary injunction. A hearing on the request for a preliminary injunction was held on October 8, 1998.

Plaintiff, Brandon Beussink ("Beussink"), claims that the Woodland R-IV School District ("the Woodland School District") violated his rights under the First Amendment to the United States Constitution. Specifically, Beussink claims that the Woodland School District suspended him from school for ten days because he had posted a homepage on the Internet which was critical of Woodland High School. The homepage's criticism of the high school included crude and vulgar language.

The evidence presented at the hearing satisfies the standard for granting preliminary injunctive relief in Beussink's favor. The request for a preliminary injunction will be granted.

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United States Court of Appeals, Second Circuit 642 F.3d 334 (2011) Avery DONINGER, Plaintiff-Appellee-Cross-Appellant, v.

Karissa NIEHOFF, Paula Schwartz, Defendants-Appellants-Cross-Appellees.

Summary: We are once again called upon to consider the circumstances in which school administrators may discipline students for speech relating directly to the affairs of the school without running afoul of the First Amendment. More precisely, we must determine if the defendant-school administrators before us are entitled to qualified immunity on the plaintiff-student's claims that they violated her First Amendment rights by (1) preventing her from running for Senior Class Secretary as a direct consequence of her off-campus internet speech, and (2) prohibiting her from wearing a homemade printed t-shirt at a subsequent school assembly.

Plaintiff-Appellee-Cross-Appellant Avery Doninger ("Doninger" or "Plaintiff") appeals from a January 15, 2009, decision of the United States District Court for the District of Connecticut (Kravitz, J.)—as well as a March 19, 2009, denial of a motion for reconsideration—granting partial summary judgment to Defendants-Appellants-Cross-Appellees Karissa Niehoff, principal at Lewis S. Mills High School ("LMHS" or "the School") in Burlington, Connecticut, and Paula Schwartz, superintendent of the school district in which LMHS is located (together, "Defendants"), on the claim that Defendants violated Plaintiff's First Amendment rights when they prohibited her from running for Senior Class Secretary in response to a blog entry that Doninger posted from her home during non-school hours.[1] Because we conclude that the asserted First Amendment right at issue was not clearly established, we affirm the district court's decision on the ground that Defendants were entitled to qualified immunity. Doninger also appeals the district court's grant of summary judgment to Defendants on her Equal Protection selective-enforcement claim, its sua sponte dismissal without prejudice of her claims under the Connecticut state constitution, and the court's determination, on her motion for reconsideration, that she failed properly to assert a claim pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).[2] We affirm the district court's determination on these claims as well.

Defendants appeal the district court's partial denial of their motion for summary judgment, asserting that they are entitled to qualified immunity on Doninger's remaining 339*339 First Amendment claim—a claim alleging that her rights were violated when Niehoff prohibited her from displaying in a school assembly a homemade t-shirt emblazoned with "Team Avery" on the front and "Support LSM Freedom of Speech" on the back. We reverse the district court on the basis that Defendants are entitled to qualified immunity on this claim as well, since, given the legal framework and the particular factual circumstances of this case, the rights at issue were not clearly established.

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In The United States Court Of Appeals For The Sixth Circuit No. 11-6476, March 28, 2013 G.C., Plaintiff-Appellant, v.

OWENSBORO PUBLIC SCHOOLS; LARRY VICK, in his individual capacity as Superintendent of Owensboro High School; ANITA BURNETTE, in her individual capacity as Principal of Owensboro High School; MELISSA BROWN and CHRISTINA SMITH, in their individual capacities as Assistant Principals of Owensboro High School, DefendantsAppellees.

Summary: Plaintiff-Appellant G.C. began attending school in the Owensboro Public School District as an out-of-district student in 2005. In September 2009, G.C. was caught sending text messages in class. School officials confiscated his cell phone and read the text messages. Because this was the last in a series of disciplinary infractions, Superintendent Dr. Larry Vick (“Vick”) revoked G.C.’s out-of-district status, barring him from attending Owensboro High School. G.C. filed suit, raising both federal and state-law claims against Defendants-Appellees Owensboro Public Schools, Vick, Principal Anita Burnette (“Burnette”), Assistant Principal Melissa Brown (“Brown”), and Assistant Principal Christina Smith (“Smith”), (collectively, “defendants”). The defendants moved for summary judgment, which the district court granted.

G.C. appeals the district court’s resolution of three of his claims: (1) his due process claim, in which he argues that he was denied a hearing prior to expulsion as required by Kentucky statute; (2) his Fourth Amendment claim based on the September 2009 search, in which he contends that school officials violated his constitutional rights when they read text messages on his phone without the requisite reasonable suspicion; and (3) his Rehabilitation Act claim, in which he argues that the defendants failed to identify him as disabled under § 504.

For the reasons stated below, we REVERSE the district court’s grant of summary judgment on G.C.’s due-process claim and on G.C.’s Fourth Amendment claim based on the September 2009 search. We AFFIRM the district court’s grant of summary judgment on G.C.’s Rehabilitation Act claim. We REMAND for further proceedings consistent with this opinion.

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In The United States District Court For The Eastern District of Virginia Civil Case No. 3:14cv009, August 5, 2014 DANIEL AND MANUELA GALLIMORE, PARENTS AND NEXT FRIENDS OF W.S.G. a minor, Plaintiffs, v.

HENRICO COUNTY SCHOOL BOARD, DIANE R. SAUNDERS, and ROBERT A. TURPIN, III, Defendants.

Summary: This matter comes before the Court on the defendants' motions to dismiss. (Dk. Nos. 8 and 10.)

On February 11, 2013, defendants Robert A. Turpin III, ("Turpin") and Diane R. Saunders ("Saunders") searched W.S.G., a student at Hermitage High School, for drugs. W.S.G. asserts two counts against the defendants. First, W.S.G. alleges Fourth Amendment violations against: the Henrico County School Board; Turpin, the Assistant Principal of Hermitage High School; and Saunders, Hermitage High School's Associate Principal. Second, W.S.G. alleges assault and battery claims arising under Virginia law against Turpin and the School Board.

The Court GRANTS the motions to dismiss the Fourth Amendment violation against Turpin and the School Board, but DENIES the motions as to Saunders. As to the assault and battery claim, the Court GRANTS the motions to dismiss the assault and battery claim against both Turpin and the School Board.

99

In The United States Court Of Appeals For The Third Circuit No. 08-4138, June 13, 2011 J.S., a minor, through her parents; TERRY SNYDER; STEVEN SNYDER, Appellants, v.

BLUE MOUNTAIN SCHOOL DISTRICT; JOYCE ROMBERGER; JAMES McGONIGLE. Summary: J.S., a minor, by and through her parents, Terry Snyder and Steven Snyder, individually and on behalf of their daughter, appeal the District Court’s grant of summary judgment in favor of the Blue Mountain School District (“the School District”) and denial of their motion for summary judgment. This case arose when the School District suspended J.S. for creating, on a weekend and on her home computer, a MySpace profile (the “profile”) making fun of her middle school principal, James McGonigle. The profile contained adult language and sexually explicit content.

J.S. and her parents sued the School District under 42 U.S.C. § 1983 and state law, alleging that the suspension violated J.S.’s First Amendment free speech rights, that the School District’s policies were unconstitutionally overbroad and vague, that the School District violated the Snyders’ Fourteenth Amendment substantive due process rights to raise their child, and that the School District acted outside of its authority in punishing J.S. for out-of-school speech.

Because J.S. was suspended from school for speech that indisputably caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school, the School District’s actions violated J.S.’s First Amendment free speech rights. We will accordingly reverse and remand that aspect of the District Court’s judgment.

However, we will affirm the District Court’s judgment that the School District’s policies were not overbroad or void-for vagueness, and that the School District did not violate the Snyders’ Fourteenth Amendment substantive due process rights.

100

United States District Court Northern District Of Mississippi Delta Division Civil Action No.: 2:09-cv-00155-MPM-DAS, November 1, 2010 J.W., individually and on behalf of her minor son, R.W, Plaintiffs, v.

DESOTO COUNTY SCHOOL DISTRICT, UNNAMED DESOTO COUNTY SCHOOL DISTRICT EMPLOYEE, in his individual and official capacities, COACH JOHN STEVENSON in his individual and official capacities, COACH KENNETH WALKER, in his individual and official capacities, CITY OF SOUTHAVEN, MISSISSIPPI, and SOUTHAVEN POLICE SERGEANT KENNEDY, in his individual and official capacities, Defendants.

Summary: This cause comes before the court on the motion of the individual defendants and the City of Southaven to dismiss and/or for summary judgment, pursuant to Fed. R. Civ. P. 12 and 56.

Plaintiff J.W., individually and on behalf of her minor son R.W., has responded in opposition to the motion, and the court, having considered the memoranda and submissions of the parties, concludes that the motions are well taken and should be granted. The Desoto County School District has not sought dismissal from this case, and the court concludes, for the reasons stated below, that the allegations against it will likely be considered by a jury.

101

United States District Court for the Eastern District of Pennsylvania Civil Action No.: 04-CV-03606 TOBY KLUMP, LEIGH KLUMP and CHRISTOPHER KLUMP, Plaintiffs, v.

NAZARETH AREA SCHOOL DISTRICT; VICTOR J. LESKY, Superintendent; MARGARET GRUBE, Assistant Principal; and SHAWN KIMBERLY KOCHER, Defendants.

Summary: This matter is before the court on Defendants Nazareth Area School District, Victor J. Lesky, Margaret Grube, and Kimberly Kocher’s Motion to Dismiss. We also considered Plaintiffs’ Memorandum of Law in Opposition to Defendant’s Motion to Dismiss Plaintiffs’ Complaint and Defendants’ Reply Brief in Support of Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint. For the reasons expressed below, we grant in part and deny in part defendants’ motion to dismiss.

Specifically, we grant defendants’ motion to dismiss Counts I and V. We also dismiss defendant Nazareth Area School District from Counts II, III, and X. We dismiss the claim for compensatory and punitive damages from Count VII. We strike all references to 18 Pa.C.S.A. §§ 3926(b), 4120 and 5301 from paragraph 20 of plaintiffs’ Complaint. In all other respects, we deny defendants’ motion to dismiss.

102

In The United States Court Of Appeals For The Fourth Circuit No. 10-1098, July 27, 2011 KARA KOWALSKI, Plaintiff-Appellant, v.

BERKELEY COUNTY SCHOOLS, a public school district; MANNY P. ARVON, II, Superintendent, in his official capacity; RONALD STEPHENS, Principal, in his official capacity and individually; BECKY J. HARDEN, Vice Principal, in her official capacity and individually; BUFFY ASHCRAFT, cheerleading coach, in her official capacity and individually; RICK DEUELL, Assistant Superintendent, in his official capacity, Defendants-Appellees.

Summary: When Kara Kowalski was a senior at Musselman High School in Berkeley County, West Virginia, school administrators suspended her from school for five days for creating and posting to a MySpace.com webpage called "S.A.S.H.," which Kowalski claims stood for "Students Against Sluts Herpes" and which was largely dedicated to ridiculing a fellow student. Kowalski commenced this action, under 42 U.S.C. § 1983, against the Berkeley County School District and five of its officers, contending that in disciplining her, the defendants violated her free speech and due process rights under the First and Fourteenth Amendments. She alleges, among other things, that the School District was not justified in regulating her speech because it did not occur during a "school related activity," but rather was "private out-of-school speech."

The district court entered summary judgment in favor of the defendants, concluding that they were authorized to punish Kowalski because her webpage was "created for the purpose of inviting others to indulge in disruptive and hateful conduct," which caused an "in-school disruption."

Reviewing the summary judgment record de novo, we conclude that in the circumstances of this case, the School District’s imposition of sanctions was permissible. Kowalski used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District’s recognized authority to discipline speech which "materially and substantially interfere[es] with the requirements of appropriate discipline in the operation of the school and collid[es] with the rights of others."

Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 513 (1969) (internal quotation marks omitted). Accordingly, we affirm.

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In The United States Court Of Appeals For The Third Circuit No. 07-4465, February 4, 2010 JUSTIN LAYSHOCK, a minor, by and through his parents; DONALD LAYSHOCK; CHERYL LAYSHOCK, individually and on behalf of their son, v.

HERMITAGE SCHOOL DISTRICT KAREN IONTA, District Superintendent; ERIC W. TROSCH, Principal Hickory High School, CHRIS GILL, Co-Principal Hickory High School, all in their official and individual capacity Hermitage School District, Appellant.

Summary: We are asked to determine if a school district can punish a student for expressive conduct that originated outside of the schoolhouse, did not disturb the school environment and was not related to any school sponsored event. We hold that, under these circumstances, the First Amendment prohibits the school from reaching beyond the schoolyard to impose what might otherwise be appropriate discipline.

It all began when Justin Layshock used his grandmother’s computer to access a popular social networking internet web site where he created a fake internet “profile” of his Hickory High School Principal, Eric Trosch. His parents filed this action under 42 U.S.C. § 1983, after the School District punished Justin for that conduct. The suit alleges, inter alia, that the School District’s punishment transcended Justin’s First Amendment right of expression. The district court granted summary judgment in favor of Justin on his First Amendment claim. We originally affirmed the district court. See Layshock v. Hermitage School Dist., 593 F.3d 249 (3d Cir. 2010). Thereafter, we entered an order vacating that opinion and granting rehearing en banc.

For the reasons that follow, we once again affirm the district court’s holding that the school district’s response to Justin’s conduct transcended the protection of free expression guaranteed by the First Amendment.

104

In The United States Court Of Appeals For The Sixth Circuit No. 06-6172, August 3, 2007 JEFF LOWERY, individually and as next friend of Derrick “Rabbit” Lowery, LISA A. LOWERY, individually and as next friend of Derrick “Rabbit” Lowery, RANDY GILES, individually and as next friend of Jacob Giles, STACEY GUTHRIE, individually and as next friend of Joseph Dooley, JAMES SPURLOCK, individually and as next friend of Dillan Spurlock, LORA SPURLOCK, individually and as next friend of Dillan Spurlock, PlaintiffsAppellees, v.

MARTY EUVERARD, DALE SCHNEITMAN, CRAIG KISABETH, JEFFERSON COUNTY BOARD OF EDUCATION, Defendants-Appellants.

Summary: Plaintiffs brought suit in federal court after they were dismissed from their high school football team. Defendants brought a motion for summary judgment based on qualified immunity, which the district court denied. On appeal, Defendants argue that Plaintiffs’ dismissal was permissible under the rule governing student speech set forth in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). For the reasons set forth below, we REVERSE the district court’s denial of Defendants’ motion for summary judgment.

105

In The United States District Court for the Southern District of Texas, Houston Division Civil Action No. H-09-3895, March 15, 2011 JENNIFER MENDOZA, INDIVIDUALLY AND AS NEXT FRIEND OF A.M., Plaintiffs, v.

KLEIN INDEPENDENT SCHOOL DISTRICT, W. SCOTT CROWE and STEPHANIE LANGNER IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES, Defendants.

Summary: Pending before the court is Plaintiff’s Motion for Summary Judgment and Defendants’ Motion for Summary Judgment. For the reasons discussed below, it is RECOMMENDED that Plaintiffs’ motion be DENIED and that Defendants’ motion be GRANTED IN PART, DENIED IN PART.

106

In The United States Court Of Appeals For The Eighth Circuit 696 F.3d 771 (2012), October 17, 2012 S.J.W., By and Through His Parents, Brian WILSON and Linda Wilson; S.W.W., By and Through His Parents, Brian Wilson and Linda Wilson, Plaintiffs-Appellees, v.

LEE'S SUMMIT R-7 SCHOOL DISTRICT; Dr. David McGehee, Superintendent, In His Individual and Official Capacity; Jack Wiley, Board President, In His Individual and Official Capacity; Chris Storms, Board Member, In His Individual and Official Capacity; Terri Harmon, Board Member, In Her Individual and Official Capacity; Patti Buie, Board Member, In Her Individual and Official Capacity; Ron Baker, Board Member, In His Individual and Official Capacity, Defendants-Appellants.

Summary: The Lee's Summit R-7 School District ("the School District") issued 180-day suspensions to twin brothers Steven and Sean Wilson (together, "the Wilsons") on January 11, 2012 for disruption caused by a website the Wilsons created. The Wilsons filed suit against the School District on March 6, 2012, alleging, along with other claims, that the School District violated their rights to free speech. The Wilsons also filed a Motion for a Preliminary Injunction to lift their suspensions. On March 23, 2012, the District Court entered an Order granting the Wilsons' Motion for a Preliminary Injunction. The School District filed a Notice of Appeal on March 27, 2012. The School District also filed an Expedited Motion for a Stay Pending Appeal on March 29, 2012, which we denied.

The matter currently before this court is the School District's appeal of the Order granting the Wilsons' Motion for a Preliminary Injunction. We hold that the District Court's findings do not support a preliminary injunction. Accordingly, we vacate the District Court's Order and reverse the preliminary injunction.

107

In The United States District Court for the Northern District of Indiana, Fort Wayne Division No. 1:09-CV-290-PPS, August 10, 2011 T.V., a minor child, by her parents, legal guardians and next friends, B.V. and T.V., and M.K., a minor child, by her parents, legal guardians and next friends, G.K. and R.K., Plaintiffs, v.

SMITH-GREEN COMMUNITY SCHOOL CORPORATION and AUSTIN COUCH, Principal of Churubusco High School, Defendants.

Summary: Not much good takes place at slumber parties for high school kids, and this case proves the point. During a summer sleepover, plaintiffs – 16 year old T.V. and 15 year old M.K. – posed for some raunchy photos which they later posted online. When school officials caught wind of the saucy online display, they suspended both girls from extracurricular activities for a portion of the upcoming school year. This lawsuit, brought by T.V. and M.K. through their parents, seeks to vindicate their First Amendment rights. The defendants are the Smith-Green Community School Corporation and Austin Couch, the principal of Churubusco High School. Both sides now seek summary judgment. The case poses timely questions about the limits school officials can place on out of school speech by students in the information age where Twitter, Facebook, MySpace, texts, and the like rule the day. The school argues that they ought to be allowed to regulate this speech while the students claim that their First Amendment rights are being violated.

Let’s be honest about it: the speech in this case doesn’t exactly call to mind high-minded civic discourse about current events. And one could reasonably question the wisdom of making a federal case out of a 6-game suspension from a high school volleyball schedule. But for better or worse, that’s what this case is about and it is now ripe for disposition.

108

In The United States District Court for the Northern District of New York 5:02-CV-1403, June 20, 2006 MARTIN and ANNETTE WISNIEWSKI, on behalf of their son Aaron Wisniewski, Plaintiffs, v.

THE BOARD OF EDUCATION OF THE WEEDSPORT CENTRAL SCHOOL DISTRICT and RICHARD MABBETT, Superintendent of Schools, Defendants.

Summary: Presently before the Court is defendants’ motion for summary judgment (Dkt. No. 38). Upon being charged with threatening a teacher, Aaron Wisniewski (“Aaron”), then a student at Weedsport Middle School, was afforded a Superintendent’s Hearing pursuant to New York Education Law, § 3214(3)(c)(1). The Hearing Officer found that Aaron had circulated through the internet a threat to kill one of his teachers and recommended suspension for a semester.

Defendant Board of Education of Weedsport Central School District (“Board”) accepted the Hearing Officer’s findings and imposed the recommended suspension. Plaintiffs claim that defendant’ actions violated Aaron’s rights under the First Amendment, 42 U.S.C. § 1983, and the New York Education Law. For the reasons set forth below, the Court grants defendants’ motion for summary judgment and dismisses the federal causes of action on the merits. The Court declines to retain jurisdiction over the state law claims and dismisses them without prejudice.

109

In The United States Court Of Appeals For The Ninth Circuit No. 11-17127, August 29, 2013 MARK WYNAR, an individual and as guardian of Landon Wynar; LANDON WYNAR, a Minor, Plaintiffs-Appellants, v.

DOUGLAS COUNTY SCHOOL DISTRICT, a political subdivision of the State of Nevada; CAROL LARK; NANCY BRYANT; MARTY SWISHER; DAVID PYLE; CYNTHIA TRIGG; KEITH ROMAN; SHARLA HALES, Defendants-Appellees.

Summary: The panel affirmed the district court’s summary judgment in an action brought under 42 U.S.C. § 1983 by a high school student and his father after the student was temporarily expelled for sending violent and threatening instant messages from his home to his friends about planning a school shooting.

The panel held that the messages, which threatened the safety of the school and its students, both interfered with the rights of other students and made it reasonable for school officials to forecast a substantial disruption of school activities. The panel held that when faced with an identifiable threat of school violence, schools may take disciplinary action in response to offcampus speech that meets the requirements of Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Under the circumstances, the panel concluded that the school district did not violate the student’s rights to freedom of expression or due process.

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In the Trenches: Tough Choices on Sensitive Topics

Steve Shields & Debra Owen, Attorneys Jackson, Shields, Yeiser & Holt

111

112

In the Trenches:

Tough Choices on Sensi2ve Topics

TSBA 2015 Summer Law Ins1tute

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Introduc/on

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Case Studies: Search and Seizure Religion Speech Equal Protec6on/Due Process Fundamental Rights Harassment/Discrimina6on

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Concluding Remarks

113

THE PARTY BUS WHAT WOULD YOU DO?

A) Search the bus and breath test the students before permiCng entry.

B) Call law enforcement.

C) Bar entry to the prom of all students on the bus.

D) Allow all students who paid to aIend the prom.

THE TALENT SHOW WHAT WOULD YOU DO?

A) Disallow her par/cipa/on.

B) Require her to sing first-­‐submiIed song.

C) Permit her to sing the alternate selec/on.

D) Put a disclaimer clause in the program.

114

THE GRADUATION WHAT WOULD YOU DO?

A) Stay in the site because students ini/ated the decision.

B) Stay in the site and remove or cover all religious materials/icons.

C) Move the ceremony to another site.

D) Cancel gradua/on.

THE CAP AND FEATHERS

WHAT WOULD YOU DO?

A) Enforce the exis/ng standards.

B) Provide an alternate ceremony.

C) Permit the requested excep/on.

D) Cancel gradua/on.

115

THE PIERCING WHAT WOULD YOU DO?

A) Ignore it.

B) Cover/conceal the piercing.

C) Suspend or expel the student.

D) Revise the policy on piercings.

THE DRESS CODE WHAT WOULD YOU DO?

A) Let the student dress as desired.

B) Require the student to dress as expected.

C) Ignore clothing issues but discipline for disrup/ve behavior.

D) Implement a school uniform policy.

116

THE LOCKER ROOM WHAT WOULD YOU DO?

A) Require the student to use male facili/es.

B) Designate a separate and private facility for the student.

C) Provide a separate and private facility for any student who desires to use it.

D) Permit the student to use female facili/es.

THE THREATENING POST WHAT WOULD YOU DO?

A) Require the student to shut down his site while a student at the school.

B) Suspend the student for the post.

C) Turn the issue over to law enforcement.

D) Suspend the student un/l his parent meets with school officials.

117

THE BLOG WHAT WOULD YOU DO?

A) Take no ac/on.

B) Require the employee to delete posts about coworkers.

C) Transfer the employee to another posi/on.

D) Assign a disciplinary suspension.

THE CRITICAL TEACHER WHAT WOULD YOU DO?

A) Recommend the teacher for termina/on.

B) Implement a Performance Improvement Plan for the teacher.

C) Make the teacher an assistant special educa/on supervisor.

D) Evaluate special educa/on services.

118

THE AFFAIR WHAT WOULD YOU DO?

A) Transfer the principal.

B) Return the assistant principal to a classroom posi/on.

C) Transfer the assistant principal.

D) Mediate the conflict between the principal and the assistant principal.

THE IRRITATING PARENT WHAT WOULD YOU DO?

A) Obtain a restraining order or injunc/on against the parent.

B) Ask the board aIorney to no/fy the parent that he is not permiIed on school property.

C) File criminal charges against the parent.

D) Pray for their student to graduate or move to Austria.

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CONCLUDING REMARKS Difficult decisions must be made.

The law maIers.

Students maIer. Employees maIer. Training is cri/cal.

Consult your aIorney(s)!

Best wishes for a successful new school year!

Debra D. Owen

Jackson, Shields, Yeiser & Holt 262 German Oak Drive Cordova, TN 38018 901-­‐754-­‐8001 Phone 901-­‐754-­‐8524 Fax www. jsylawfirm.com

This presenta2on is for informa2onal purposes and should not be considered legal advice.

This presenta2on does not create an aGorney-­‐ client rela2onship.

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Case Update: Round-Up of School Law Cases

Randall Bennett, TSBA Deputy Executive Director & General Counsel

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School Law Quarterly A TSBA Publication for School Board Attorneys, Board Members, and Administration

Table of Contents Volume 14, Issue 3 Pages 1-3

N.W. v. Boone Cnty. Bd. of Educ.

Pages 3-5

Wilder v. Union Cty. Bd. of Educ.

Pages 5-8

Union Cty. Educ. Assoc. v.

Union Cty. Bd. of Educ.

Pages 9-10

Attorney General Opinions

Page 11

TCSBA Annual Meeting NSBA Legal Clips

N.W. v. Boone Cnty. Bd. of Educ.

Sixth Circuit Court of Appeals, Aug. 18, 2014 A three-judge panel for the U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY, TN) has vacated the federal district court’s decision granting tuition reimbursement to the parents of a disabled student for their unilateral private school placement, even though the district court found that the parents had failed to prove that the school district denied the student a free appropriate public education (FAPE). The panel concluded that the lower court erred in holding that the Individuals with Disabilities Education Act’s (IDEA) “stay-put” provision applies in those situations where the parents withdraw the disabled student from the placement approved by the district, and then unilaterally place the student in private school without the district’s approval. Based on U.S. Department of Education (ED) regulations, the panel found that a valid “then current placement” for purposes of the stay-put provision requires an educational setting that the school district has approved at some point. As a result, a unilateral placement could not serve as a “then current placement” under the IDEA. In 2007, when N.W. was three, he was enrolled in the Boone County Schools (BCS) in Kentucky. BCS determined that N.W. was eligible for special education services under the IDEA for his diagnosis of apraxia, and placed him under an IEP at St. Rita’s School for the Deaf in Ohio. In June 2010, when N.W. was 6, his parents removed him from St. Rita’s and unilaterally enrolled him at Applied Behavioral Sciences (ABS), another private school in Ohio, and requested reimbursement for tuition and transportation costs. BCS convened an Admissions and Release Committee (ARC) meeting on October 21, 2010, to discuss N.W.’s placement options, and generated a new IEP. However, the parties could not agree on placement.

The parties agreed to a mediated settlement involving reimbursement for tuition, transportation, and attorneys fees for the August to November 2010 period, and partial costs through Summer 2011. In turn, N.W.’s parents agreed to attend an ARC meeting tasked with creating a plan for N.W.’s transition back into BCS for the 2011-12 school year.

In the Spring 2011, BCS attempted to convene the ARC meeting, but N.W.’s parents repeatedly rescheduled. Eventually, the parties met and 123

Tennessee School Law Quarterly created a tentative transition plan. N.W.’s parents, however, balked at the plan’s implementation and filed a due process complaint on October 31, 2011. They alleged that BCS’ proposed plan would fail to provide N.W. with FAPE, and N.W.’s parents requested a due-process hearing. In addition, they asked “[t]hat ABS be considered [N.W.’s] ‘stayput’ placement.”

The due process hearing took place in March 2012. In late Spring 2012, the Hearing Officer (HO) issued his decision, finding that the parents failed to prove that BCS’ plan would deny N.W. FAPE. However, the HO also stated that “[t]he present IEP was being used while [N.W.] was attending ABS. [N.W.] continues to be a student at ABS during the pendency of this appeal. Under the situation here where the parties are disputing the transition plan, [N.W.] stays at ABS under ‘stay put[.]’” As a result, the HO ordered BCS to reimburse the parents for the costs of N.W. attending ABS during the 2011–2012 school year. Both parties appealed the decision to the Exceptional Children’s Appeal Board (ECAB).

The ECAB affirmed the HO’s conclusion that the parents had failed to show that BCS would not provide N.W. with FAPE. However, the ECAB reversed the HO’s “stay-put” order, and held that ABS was not the “stay put” placement because “no ARC decision or legal decision decided that placement at ABS was proper.”

N.W.’s parents appealed the ECAB’s decision to federal district court, claiming that BCS’ plan would fail to provide N.W. with FAPE and “[t]hat the [ECAB] incorrectly overturned the finding of the hearing officer that N.W.’s ‘stayput’ placement was [ABS].” The district court, like the HO and the ECAB, found that “N.W. ha[d] not established that the District’s offer of placement at New Haven [a BCS elementary school with an autism-specific classroom] was inappropriate.” However, the district court also found that “N.W.’s operative placement under which he was actually receiving instruction at the time the dispute arose was ABS.” Consequently, the district court ordered the HO’s stay-put ruling to be reinstated and BCS to reimburse N.W.’s parents for the cost of N.W. attending ABS. BCS appealed the district court’s decision to the Sixth Circuit.

The Sixth Circuit panel vacated the district court’s order granting the parents any tuition reimbursement for ABS, concluding that the lower court had erred on two grounds.

First, the IDEA does not permit courts to order reimbursement to parents in the absence of a finding that the school district has failed to offer the student FAPE. The

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panel’s conclusion hinged on its interpretation of 20 U.S.C. § 1412(a)(10)(C)(ii) when read in conjunction with 20 U.S.C. § 1412(a)(10)(C)(i). The panel “read subsection (ii) to bar district courts from ordering reimbursement, absent a finding that the school district failed to provide a FAPE, when parents have unilaterally removed their child from the public schools.” Because the parents had not challenged the district court’s findings that the parents failed to show that BCS had not offered FAPE and had unilaterally enrolled N.W. at ABS, the panel left those factual findings undisturbed and held that “the district court’s order of reimbursement is contrary to the clear intent of § 1412(a) (10)(C)(ii).”

Second, the panel found the district court’s and parents’ reliance on IDEA’s “stay-put” provision to be misplaced. It found that the text of the provision and its accompanying regulations did not support the parents’ interpretation of the “stay-put” provision. It rejected the lower court’s reliance on Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618 (6th Cir. 1990), which gave the term “current educational placement” its “plain meaning” and held that the term “refers to the operative placement actually functioning at the time the dispute first arises,” in finding that ABS was N.W.’s “current educational placement.”

The panel pointed out that Thomas pre-dated ED’s regulations defining “placement” so that the term indicates “that the school district must, in some fashion, approve of the placement decision and that the parents cannot unilaterally decide upon which school will serve as the child’s ‘placement.’” As a result, the panel found that it was clear the regulations had superseded the Sixth Circuit’s approach in Thomas. Applying ED’s definition, “which requires the school district to approve of the educational setting at some point,” the panel determined that ABS does not qualify as N.W.’s “current educational placement,” because BCS never agreed to send N.W. to ABS in an IEP. The panel rejected the parents’ argument that a number of other federal circuits had rejected the “interpretation of ‘placement’ that requires the school district’s agreement.” It pointed out that the case law offered by the parents could be distinguished in a number of ways. First, the cases cited, like Thomas, pre-date ED’s regulations. Second, in the cases cited, the school districts had previously approved the students’ placements. The panel stated: “So, while these cases may have opined that the ‘[stay-put] provision is, in effect, an automatic preliminary injunction’ in the situations before those courts, … those cases do not require us to interpret ‘placement’ in a similar fashion in this case.”

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Tennessee School Law Quarterly Next, the panel found to be without merit the parents’ contention that if ABS is the not the “stay-put” placement for N.W., he would be placed in a school he never attended. While conceding that such a placement would be absurd in the context of the “stay-put” provision, the panel found that in N.W.’s case, the “stay-put” placement would be St. Rita’s, because “for purposes of the stay-put provision — [it] is the last agreed-upon school that N.W. attended.”

Finally, the panel knocked down the parents’ assertion that, even assuming that the interpretation of “placement” requires the school district’s approval, ABS is N.W.’s placement under the terms of the 2010 settlement agreement. The panel found this argument flawed because the plain text of the agreement states: “Neither party makes an admission as to educational placement,” which completely negates the parents’ argument. As a result, the panel held that the “stay-put” provision did not apply, and N.W. was not entitled to its protection because his parents unilaterally enrolled him in ABS in the absence of school district approval.

Reprinted from NSBA Legal Clips; August 21, 2014 © National School Boards Association 1680 Duke Street, Alexandria, VA 22314 Phone: (703) 838-6722 | Fax: (703) 683-7590 http://www.ca6.uscourts.gov/opinions.pdf/14a0192p-06.pdf

Tina Wilder v. Union Cnty. Bd. of Educ.

Tennessee Court of Appeals - Knoxville, May 12, 2014 This appeal arose from the dismissal of a tenured teacher. The Union County Board of Education (“the Board”) dismissed Tina Wilder (“Wilder”) following an incident involving underage drinking at Wilder’s lake cabin.

Wilder, then an experienced Union County teacher, hosted an after-prom party for a group of young people at her lake cabin on the night of May 12, 2012, or in the early morning hours of May 13, 2012. Acting on a tip that underage drinking would occur at the party, law enforcement officers soon arrived and the party abruptly ended. Several individuals were arrested for underage drinking. Wilder was charged with contributing to the delinquency of minors and allowing underage consumption of alcohol on her premises. Wilder eventually pled guilty to the latter charge.

Dr. James Carter (“Carter”), then the temporary Director of Schools, placed Wilder on administrative leave in the aftermath of the incident. In July 2012, Carter wrote Wilder to inform her that her dismissal was now being sought. Wilder had been employed by the Board since around 1999. Carter outlined the charges against Wilder as follows: Please be further advised that pursuant to Tenn. Code Ann. § 49-5-511 you are charged with unprofessional conduct also known as conduct unbecoming to a member of the teaching profession, namely, improper use of intoxicants, which justify dismissal, that is, allowing underage adults to consume alcohol on your property and for contributing to the delinquency of a minor, and disregard of the teacher code of ethics, all of which occurred on or about May 12, 2012 and/or May 13, 2012, as described in the attached Affidavit of Complaint signed by Deputy J. Sharp.

Wilder was informed that the board had certified at the charges and she requested a hearing that was conducted in November 2012. Deputy Jeff Sharp (“Sharp”), a law enforcement officer who had been on the scene at the after-prom party, testified at the hearing. Acting on a tip that Wilder would be hosting an underage drinking party, Sharp parked near Wilder’s cabin to observe. Several carloads of young people drove toward Wilder’s cabin. Sharp called for backup. No more than half an hour elapsed between the time the young people arrived and when the officers moved in. Surveying the scene, Sharp saw Wilder’s vehicle parked near the cabin with the vehicle’s radio blaring. In the vicinity, a bonfire had been built.

As Sharp and the other officers arrived, young people fled in all directions. All in all, around 27 young people were found

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Tennessee School Law Quarterly on the premises. Several individuals were arrested in the melee, including some on charges of underage consumption. Sharp walked into the cabin, a place he described as a “[s]mall, small residence,” and found Wilder sitting on the couch by her friend. Sharp stated that he smelled alcohol on both. Sharp testified to what was discovered around and in the cabin, and photos of the scene were introduced as exhibits. A cooler filled with beer had been placed outside the cabin. Empty and full bottles of alcoholic beverages were strewn about both inside and outside the cabin. A garbage can inside was full of discarded alcoholic beverage containers. All in all, officers found dozens of alcoholic beverages on the premises, including fifty-four 12 oz. bottles of Platinum Bud Lite. Officers also found six young individuals hiding in a back bedroom in the cabin. A bag containing car keys that fit vehicles parked outside the cabin also was discovered.

Trial Court. Ultimately the Trial Court reversed the Hearing officer and held that the evidence sustained Wilder’s discharge.

According to Wilder’s testimony, this was a party with strict rules and the young people had disobeyed her instructions not to drink. Wilder also stated that she did not know that so many young people would attend. Shortly after midnight, Wilder’s 15-year-old daughter called and told her that the individuals were en route to the cabin. As the party got underway, Wilder remained indoors and watched a movie. Wilder testified that she was not aware that underage drinking was taking place. However, testifying about why the young people ran when the officers arrived, Wilder stated: “I knew that there was alcohol, too. So I figured that they were running to try to save their hind ends.” Wilder denied collecting car keys from anyone at the party.

(A) Immorality; (B) Conviction of a felony or a crime involving moral turpitude; (C) Dishonesty, unreliability, continued willful failure or refusal to pay one’s just and honest debts; (D) Disregard of the teacher code of ethics in part 10 of this chapter, in such manner as to make one obnoxious as a member of the profession; or (E) Improper use of narcotics or intoxicants; . . . .

The Hearing Officer found that underage drinking had occurred on Wilder’s premises. According to the Hearing Officer, Wilder had exercised extremely poor judgment in failing to adequately supervise the young people at the party. The Hearing Officer, however, did not find that dismissal was an appropriate discipline. Instead, the Hearing Officer found a 30-day suspension without pay appropriate.

The Hearing Officer noted Wilder’s otherwise exemplary service record as a teacher. The Hearing Officer also found no proof that Wilder knew about the underage drinking at the party.

Tenn. Code Ann. § 49-5-511(a)(2) provides that teachers may be dismissed or suspended for incompetence, inefficiency, neglect of duty, unprofessional conduct, or insubordination. As relevant to this appeal, “[c]onduct unbecoming to a member of the teaching profession” includes but is not limited to the following:

As to the due process issue the court stated “We fail to see how it is unfair for a director to appeal the decision of the impartial hearing officer he or she chose. Such an appeal shows a disagreement by the director with the hearing officer, which, if anything, shows there was no bias in the director’s picking of a clearly impartial hearing officer.”

Wilder has received several levels of review in this matter, including a de novo review by the Trial Court and now an appeal in this court. Respectfully, while Wilder understandably opposes her dismissal, she has had ample opportunity to make her case. The Court held that none of the alleged deficiencies raised on appeal by Wilder rise to the level of a due process violation.

In December 2012, the new Director of Schools appealed the Hearing Officer’s decision to the Board. An appeal hearing took place in February 2013. Wilder was represented by counsel at the hearing. After some questions and the two sides detailing their case, the Board voted to revise Wilder’s penalty to dismissal. Continuing to pursue her avenues of appeal under the Teacher Tenure Act, Wilder filed a petition for writ of certiorari against the Board in the

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Wilder appealed to the Court of Appeals where she raised issues. The court restated the issues as follows: 1) whether Wilder was afforded due process; 2) whether the Trial Court applied the correct standard of review; and, 3) whether the evidence preponderates against the Trial Court’s decision

The Court held, inter alia, that Wilder was afforded due process, that the Trial Court applied the correct standard of review, and that the evidence supported the Trial Court’s decision. The Court affirmed the judgment of the Trial Court.

Under applicable law, the Trial Court was required to conduct a de novo review of Wilder’s case. According to Wilder, the Trial Court failed to conduct a true de novo

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Tennessee School Law Quarterly review under the Teacher Tenure Act because it improperly deferred to the Board’s decision. As evidence, Wilder points to, among other things, the Trial Court’s passing reference at one point in its findings to “the board’s eyes.” Wilder also argues that the Trial Court improperly deferred to the Board by failing to specifically consider whether dismissal was warranted.

In rebutting the argument the Court of Appeals pointed out that the Trial Court made multiple detailed findings. The Trial Court’s findings logically and independently support its determination that Wilder should be dismissed on the basis of unprofessional conduct. The Trial Court’s reference to the Board was not integral to the Trial Court’s analysis at all. A trial court’s de novo review of a board’s decision under the Teacher Tenure Act simply means an independent consideration, not that the outcome necessarily will be different. From our review of the entire record, the Court concluded that the Trial Court did, in fact, conduct an independent de novo consideration of the written record as required.

As to the final issue, whether the evidence preponderates against the Trial Court’s decision the Court noted that the Trial Court made a number of findings of fact, including, among others, the following: photographic evidence of an “almost half a pickup load” of alcohol; a bag of keys taken up; and, a garbage can full of alcoholic beverages inside the residence.

The evidence in the record does not preponderate against these findings of the Trial Court. These facts combine to establish that Wilder knew about the underage drinking at the after-prom party. Perhaps the most striking undisputed fact is Wilder’s guilty plea to knowingly allowing underage persons to drink alcohol on her premises. Wilder argues on appeal that she only entered the plea on the advice of her lawyer in a bid to save her job, but that does not alter the fact that she pled guilty under oath to the offense of allowing underage persons to drink alcohol on her premises. Wilder does not assert that her plea was coerced or otherwise invalid. The evidence supports the Trial Court’s finding that Wilder knowingly allowed underage consumption of alcohol at the party on her property.

By knowingly hosting underage drinkers, Wilder both contravened Tennessee law and her school system’s efforts to curb underage drinking. Wilder’s hosting a party where she knowingly allowed underage drinking on her premises falls squarely into the category of unprofessional conduct for a school teacher under the Teacher Tenure Act. The Court found no error in the Trial Court’s decision that Wilder’s dismissal was warranted under these facts and affirmed the judgment of the Trial Court in its entirety. http://www.tncourts.gov/sites/default/files/wildertopn.pdf

Union County Educ. Assoc. v. Union Cnty. Bd. of Educ.

Tennessee Court of Appeals - Knoxville, Aug. 28, 2014 In April of 2012, the schoolteacher (not identified in court documents), who was working in the Union County school system, was summoned to a meeting with administrative officials for the purpose of addressing and investigating allegations of misconduct by the teacher that had been made by students. The teacher, a member of the Association, requested that he be accompanied to the meeting by a representative of the Association. Susan Oaks, a supervisor of instruction with Union County schools, conducted the investigation. When Ms. Oaks arrived for the meeting, two others were present with the teacher – a fellow teacher from the same school, and a representative from the Association. Ms. Oaks, acting on the direction of the Union County director of schools, told the teacher that the others would not be allowed to be present with him during the meeting. He was alone with Ms. Oaks and the acting principal of the school for the first investigatory interview.

Ms. Oaks described the allegations that had been made against the teacher, reading certain written statements that had been provided by students, and asked the teacher to provide a written statement in response. They scheduled a second meeting where Ms. Oaks would pick up the teacher’s response and provide him with typed copies of the students’ statements with their names redacted. When Ms. Oaks arrived for the second meeting, the same two individuals were with the teacher. He again asked that they be allowed to be present at the meeting. Ms. Oaks again declined his request. Ms. Oaks passed the information she gathered from the investigation to the director of schools, who made the decision regarding what to do about the misconduct allegations. Ultimately, the teacher did not receive any discipline or other adverse action resulting from the investigation.

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Tennessee School Law Quarterly The Association filed this action on July 12, 2012, alleging that the Board violated the Collaborative Conferencing Act by refusing the teacher’s requests to be accompanied by an Association representative. The trial court granted summary judgment to the Board on the sole ground that the Association lacked standing. The Association appealed.

The issue was whether the trial court correctly granted summary judgment to the board based upon the court’s determination that the Association had no injury in fact and therefore lacked standing to proceed with this lawsuit. This Court addressed what it determined to be the following interrelated questions: (1) whether Tenn. Code Ann. § 495-603 provides a professional employee the right to have a representative of his/her organization present, upon the employee’s request, at an investigative interview where the employee reasonably believes the investigation may result in disciplinary action against him or her; and (2) whether the Association has met the requirements to establish its “organizational” or “associational” standing to bring this action on behalf of its members. The teacher was not a party to this action.

The Board argued that any rights provided to professional employees under the Collaborative Conferencing Act are given to individuals only, not teacher associations such as the Association. As a consequence, the Board asserts that the trial court correctly determined that the Association did not have standing to file this lawsuit. The Association argued that the Board clearly violated the Collaborative Conferencing Act, which specifically provides for the remedy the Association seeks – (1) a judgment that the Board acted unlawfully in refusing the teacher’s requests for assistance in the interview, and (2) an order that the Board cease and desist from such unlawful acts. The Association further contended that it had standing to bring this action on behalf of its members under the doctrine of organizational standing.

The Association argued that the Collaborative Conferencing Act grants professional employees, upon request, the right to have a representative of his/her association present at an interview where the employee reasonably believes the investigation may result in disciplinary action against him or her. The Board disagreed, arguing that the Act provides no such right to employees, and therefore the Association has no organizational standing because it cannot demonstrate the first prong of the test – that “its members would otherwise have standing to sue in their own right.” The right at issue here has become known as a “Weingarten right” because it was first recognized by the U.S. Supreme Court in the case of NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). In Weingarten, the Court affirmed the National

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Labor Relations Board’s decision that an “employer’s denial of an employee’s request that her union representative be present at an investigatory interview which the employee reasonably believed might result in disciplinary action constituted an unfair labor practice” under the National Labor Relations Act. The Weingarten Court held that the right to have a union representative present was provided by section 7 of the NLRA, which provides: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities...

29 U.S.C.A. § 157.

Three years after Weingarten, the Tennessee General Assembly enacted the Education Professional Negotiations Act (“EPNA”), which included the following nearly identical provision in EPNA’s section 7: Professional employees shall have the right to selforganization, to form, join, or be assisted by organizations, to negotiate through representatives of their own choosing, and to engage in other concerted activities for the purpose of professional negotiations or other mutual aid or protection; Provided, professional employees shall also have the right to refrain from any or all such activities.

Tenn. Pub. Acts 1978, ch. 570, § 7 (originally codified at Tenn. Code Ann. § 49-5506 and later recodified at § 49-5603). This provision remained unchanged until 2011, when the legislature repealed EPNA and replaced it with the Collective Conferencing Act. Tenn. Code Ann. § 49-5-603 currently provides as follows: Professional employees have the right to self-organization, to form, join or be assisted by organizations, to participate in collaborative conferencing with local boards of education through representatives of their own choosing and to engage in other concerted activities for the purpose of other mutual aid and benefit; provided, that professional employees also have the right to refrain from any or all such activities. (Emphasis added.)

In determining that the Weingarten “right inheres in § 7’s guarantee of the right of employees to act in concert

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Tennessee School Law Quarterly for mutual aid and protection,” 420 U.S. at 256, the U.S. Supreme Court reasoned as follows: The action of an employee in seeking to have the assistance of his union representative at a confrontation with his employer clearly falls within the literal wording of § 7 that “[e]mployees shall have the right . . . to engage in . . . concerted activities for the purpose of . . . mutual aid or protection.” Mobil Oil Corp. v. NLRB, 482 F.2d 842, 847 (CA7 1973). This is true even though the employee alone may have an immediate stake in the outcome; he seeks “aid or protection” against a perceived threat to his employment security. The union representative whose participation he seeks is, however, safeguarding not only the particular employee’s interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly. The representative’s presence is an assurance to other employees in the bargaining unit that they, too, can obtain his aid and protection if called upon to attend a like interview. Concerted activity for mutual aid or protection is therefore . . . present here[.]

The Court of Appeals stated that The Collaborative Conferencing Act specifically enumerates the following rights given to professional employees under the Act: (1) to self-organization; (2) to form, join or be assisted by organizations; (3) to participate in collaborative conferencing . . . through representatives of their own choosing; and (4) to engage in other concerted activities for the purpose of other mutual aid and benefit. (Emphasis added). The Court observed that the second right – “to be assisted by organizations” – is arguably more strongly worded in employees’ favor than the NLRA, which gives employees the right to “assist labor organizations.” Giving the words “to be assisted by organizations” their plain and ordinary meaning, the activity at issue here, a request for assistance from an organization representative in an investigatory interview, is encompassed by this clear and unambiguous language of Tenn. Code Ann. § 49-5-603.

Tenn. Code Ann. § 49-5-606(a)(2) provides that “[i]t is unlawful for a board of education or its management personnel to: . . . [i]nterfere with, restrain or coerce employees in the exercise of the rights guaranteed in § 49-5-603.” Section 606(c) provides a judicial remedy for such an unlawful act: (1) A complaint of an unlawful act shall be filed with, or initiated by the board of education. If no reasonable resolution is reached between the parties, a complaint may be filed in the chancery court of the county where the local education agency is located. *** (3) The court is empowered to prevent any board of education or its agents, or organizations, associations, professional employees, or their agents, from engaging in any unlawful act.

(4) If, upon the preponderance of the evidence taken, the court is of the opinion that a party named in the complaint has engaged in or is engaging in any such unlawful act, then the court shall state its findings of fact, issue an order requiring the party to cease and desist from the unlawful act, and take affirmative action including resumption of collaborative conferencing or reinstatement of employees. The order may further require the party to make reports from time-to-time showing the extent to which it has complied with the order.

When an employee asks to exercise his or her Weingarten right to have assistance under the appropriate circumstances, “two or more employees” – the interviewed employee, the assisting association representative, and, in a broader sense, the association itself – “are working together at the same time and the same place toward a common goal” – ensuring that all information pertinent to the investigation is made known to the employer, and that the employee is not treated in a manner that unfairly impinges on his or her rights.

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The Court concluded that the Collaborative Conferencing Act provides the right to have an organizational representative present, upon the professional employee’s request, at an investigative interview where the employee reasonably believes the investigation may result in disciplinary action against him or her.

The Court reasoned that the fact that the teacher was not disciplined as a result of the investigation is immaterial.

The employee was injured, under the express terms of the statute, when the Board interfered with and restrained his Weingarten right to be assisted by the Association and to engage in concerted activity for mutual aid or benefit. No further injury is required to convey standing to seek the remedy established by the statute. Thus, the Association has established the first prong of the organizational standing test by showing that its members would otherwise have standing to sue in their own right.

The Court further reasoned that the Association has also met the second prong by showing that “the interests it seeks to protect are germane to the organization’s purpose.”

Clearly, a primary purpose of the Association is to act col-

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Tennessee School Law Quarterly lectively, or in a concerted effort, for the mutual aid, benefit, and protection of its members.

ity in addition to collaborative conferencing, such as the Weingarten right discussed herein.

The Board argues that because the subject at issue here, the investigation of allegations of teacher misconduct and potential discipline, is not a term or condition of employment that is subject to the Act’s collaborative conferencing requirement, the Association cannot have the right to take action to vindicate a member’s Weingarten right. Tenn.

Code Ann. § 49-5-608 sets forth a list of terms and conditions of employment that are subject to the collaborative conferencing requirement, providing as follows:

The judgment was reversed and the case remanded to the trial court. http://www.tncourts.gov/sites/default/files/unioncoopn.pdf

(a) A local board of education shall be required to participate in collaborative conferencing with professional employees, or their designated representatives, if any, with respect to only those terms and conditions of employment that are specified in this section. Such terms and conditions include and are limited to the following: (1) Salaries or wages; (2) Grievance procedures; (3) Insurance; (4) Fringe benefits, but not to include pensions or retirement programs of the Tennessee consolidated retirement system or locally authorized early retirement incentives; (5) Working conditions; except those working conditions which are prescribed by federal law, state law, private act, municipal charter or rules and regulations of the state board of education, the department of education or any other department or agency of state or local government; (6) Leave; and (7) Payroll deductions; except as provided in subsection (b). (b) No other terms or conditions of employment shall be the subject of collaborative conferencing between the board of education and the professional employees or their representatives . . .

The Court recognized that it is undisputed that the Act does not require collaborative conferencing on the subject at issue here. But section 603 provides professional employees rights additional to collaborative conferencing, stating that they “have the right to . . . participate in collaborative conferencing . . . and to engage in other concerted activities for the purpose of other mutual aid and benefit.” (Emphasis added). The legislature’s use of the term “other” indicates its intent to recognize the right to engage in concerted activ-

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Tennessee School Law Quarterly Attorney General Opinions (Below you will find the questions and opinions issued by the office of the Attorney General. For a more thorough analysis, click on the link following the opinion.)

Attorney General Opinion No. 14-59 Inspection Under Public Records Act of Applications for Position of Clerk and Master Questions 1. Are applications (consisting of letters and resumes) for the position of chancery court clerk and master subject to inspection under the Public Records Act, Tenn. Code Ann. § 10-7-503(a)?

2. If such applications are public records, may the chancery court prevent their disclosure by placing them under seal?

Answers 1. Yes. Applications for the position of chancery court clerk and master are public records.

2. No. Unless there is an action pending before the court, the chancery court has no jurisdiction to issue an order sealing application documents for the position of clerk and master. http://www.tennessee.gov/attorneygeneral/op/2014/op14-59.pdf

Attorney General Opinion No. 14-68 Authority to Waive Requirements of Tenn. Code Ann. § 49-1-617 QUESTIONS 1. Does the Commissioner of Education have authority to waive the requirements of Tenn. Code Ann. § 49-1-617, under which Tennessee school districts must include Tennessee Comprehensive Academic Progress (TCAP) test scores as a percentage of a student’s final grade?

2. If the TCAP test scores required to be used by school districts are withheld by the Department of Education, would that constitute a violation of the law?

3. Would “recalibrating” TCAP test scores by the Department of Education constitute “compromising the integrity of the testing process” in violation of Tenn. Code Ann. § 49-1-607?

ANSWERS 1. The Commissioner of Education has authority under Tenn. Code Ann. § 49-1-201(d)(1) to waive the requirements of Tenn. Code Ann. § 49-1-617, which do not relate to “[f ]ederal and state student assessment and accountability” under § 49-1-201(d)(1)( J).

2. No federal or state law would be violated by a delay in releasing TCAP test scores so long as the results were provided as soon as practicable and no later than June 30.

3. The “post-equating” process conducted by the Department of Education for every TCAP examination would not “compromis[e] the integrity of the testing process” and thus would not violate Tenn. Code Ann. § 49-1-607. http://www.tennessee.gov/attorneygeneral/op/2014/op14-68.pdf

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Tennessee School Law Quarterly Attorney General Opinion No. 14-76 Special School District Tax Rate Questions 1. If a private act creating a special school district levies a property tax at a specific rate, under what circumstances may the district set a lower tax rate than that set forth in the act?

2. Can the language of a private act be tailored to allow a special school district to set a tax rate less than that authorized or within a numerical range of “not less than nor in excess of ” that authorized by the act?

Answers 1. A special school district does not have authority to vary from the tax rate set forth in the applicable private act. In the event of a property reappraisal, the State Board of Equalization has the authority to revise the district’s tax rate pursuant to Tenn. Code Ann. § 67-5-1704.

2. No. The General Assembly must establish a single specific tax rate for a special school district in the private act and may not delegate its taxing power by granting rate-setting discretion to a special school district. http://www.tennessee.gov/attorneygeneral/op/2014/op14-76.pdf

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Tennessee School Law Quarterly

Tennessee School Law Quarterly Published by: The Tennessee School Boards Association 525 Brick Church Park Drive Nashville, TN 37207 Phone: 615/815-3900 800/448-6465 615/815-3911 Fax: Layout and Design by: Ben Torres Director of Research and Communications Content by: Randall Bennett TSBA Deputy Executive Director & General Counsel rbennett@tsba.net 615/815-3902 We’re on the web! Visit us at: www.tsba.net Disclaimer: The information in this issue represents the opinions of the writers and does not necessarily represent the official position of TSBA

NSBA’s Legal Clips is a service of the National School Boards Association’s Office of General Counsel and the NSBA Council of School Attorneys (COSA).

This free service provides thousands of subscribers with weekly updates on important and interesting school law issues, as well as helpful resources. To register visit http://legalclips.nsba.org/about/.

TCSBA Annual Meeting November 16, 2014

The TCSBA Annual Meeting will be held November 16, 2014 at the Opryland Hotel and Convention Center in conjunction with TSBA’s Annual Convention. The nominating committee has recommended the following slate of officers for TCSBA. If Elected they will serve from January 2015 until December 2016: •

President

Larry Giordano

•

Vice-President

Clifton Miller

•

At-Large

Robin Phillips

There will also be an opportunity for TCSBA members to gain CLE credit by attending a preconvention legal workshop from 12:30 p.m. - 4:00 p.m. on Saturday, November 15. The cost of attendance will be $75. Topics include: • • •

What’s Happening in School Law and How It Affects Your District

Education Funding in Tennessee

The ACLJ - How it’s Mission Affects Your School District

To register visit www.tbsa.net or contact the TSBA registrar at registrar@tsba.net or 615-815-3910.

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Fall 2014 Tennessee School Law Quarterly

Tennessee

School Law Quarterly A TSBA Publication for School Board Attorneys, Board Members, and Administration

Table of Contents Volume 14, Issue 4 Pages 1-4

Belcher v. Robertson County

Pages 4-5

F.H. v. Memphis City Schools

Page 6

Attorney General Opinions

Page 7

Employment Law Seminar

Belcher v. Robertson County U.S. District Court, Nasvhille, November 26, 2014 This lawsuit was brought by the parents of three children who were students at East Robertson County Elementary School (“the School”) during the relevant time period. The action arises from alleged peer-onpeer sexual abuse which occurred at the School. Plaintiffs allege claims against the Robertson County Board of Education and Robertson County, Tennessee (collectively “Defendant”) under Title IX (20 U.S.C. § 1681, et seq.); 42 U.S.C. § 1983 (failure to train); and the Tennessee Governmental Liability Act (negligence). The case was tried without a jury on September 23, 24, and 25, 2014, and the parties filed post-trial briefs (Docket Nos. 73 and 76).

The fact pattern and allegations of sexual abuse comprise the first nine pages of this opinion and is too extensive to detail in this summary, but the alleged incidents are many and convoluted. ML (male) is the alleged perpetrator of sexual abuse of two minor children, MB (male) and BE (female). WJ (male) is the alleged perpetrator of sexual abuse against JA (male) as well as a victim of ML. All students were early elementary students.

ML’s preschool teacher reported to DCS that ML had put his hands on a little girl’s privates while it was nap time and she had to call the girl’s mother. In kindergarten, ML’s teacher knew that ML had kneed a little girl in her private area more than once. She reported one of the incidents to the School guidance counselor, who talked with both ML and the girl.

Neither the teacher nor the School reported these incidents to DCS. The kindergarten girl’s mother testified that she told ML’s teacher that ML was touching her daughter inappropriately, and she asked that either her daughter or ML be removed from the class. The School did not agree to remove one of the two children from the class.

ML’s first grade teacher knew that his kindergarten teacher had had trouble with ML. She was never told, however, about the inappropriate touching. She testified that teachers are told that children’s information is supposed to be confidential and it is on a “need-to-know basis.” When the three boys, including MB and ML, were required to stay with her, no

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Tennessee School Law Quarterly matter where she went, singled out and segregated from the other children, the teacher never told MB’s parents about that practice.

ML’s first grade teacher also told a substitute teacher about not letting these three children out of her sight. She told the substitute teacher that the three students were to be in her view at all times, but she did not tell the substitute teacher why. She later told the substitute that the principal had said, “You are on a need-to-know basis, and this is all you need to know, that these kids need to be with you at this time.”

After ML was hospitalized in the spring of 2012, a DCS caseworker told the School officials about the allegations of inappropriate touching and that ML had identified two children by first name whom, he admitted, he touched inappropriately. She characterized the information as “a severe abuse allegation.” On April 19, 2012, the School held a Student Support Team Meeting concerning ML. The summary of that meeting states that, based on information provided by ML’s teacher and the guidance counselor, concerns were brought to the School’s attention that ML needed to be closely supervised and monitored at school.

At that meeting, School employees discussed ML’s need for constant supervision because of the inappropriate behavior reported by Vanderbilt. They discussed the names of the two children ML said he had inappropriately touched.

The Safety Plan for ML provided that ML would be supervised at all times while at school. If ML were in a classroom and the teacher walked out and left him alone that would be an express violation of the safety plan. Defendant required everyone in contact with ML in first grade to sign off on the Safety Plan and then required the same for those with whom he would come in contact in second grade.

The Safety Plan also stated that all information regarding ML would be kept confidential. Therefore, the parents of the children in the classroom, even the parents of earlier “victims,” were never told about this Safety Plan. Moreover, teachers were not told about the reasons for Safety Plan, just that they should keep close supervision of ML. (Teacher supervising ML on the playground not told by anyone what specific safety concern ML’s plan was designed to address, and teacher said it was none of her business).

In a phone call to MB’s mother regarding questioning MB, the vice principal refused to tell her why the questioning was necessary. When MB’s mother went to see the principal

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the next day, the principal refused to tell her the truth about ML and the alleged inappropriate touching. When MB’s mother filed a complaint with the Director of Schools, he never called her back.

After the incident involving ML and BE, the teacher made ML and BE apologize to each other and to the class. She also told the class she wanted it dropped. In other words, the teacher had the victim, BE, apologize to the perpetrator, ML, in front of all the other children. Then she told the students, including the child who reported it, to “drop it.” The teacher told the students not to talk about it or they would get in trouble. Then, the next day, the principal interviewed every child in the classroom about what happened. Yet BE’s mother testified that no one associated with Defendant ever called her back. “It was like they didn’t want to talk about it, acted like it didn’t happen.”

After JA’s parents reported the sexual abuse by WJ in the fall of 2012, the principal and teacher separated the two boys on the playground, and both boys were required to stay within designated areas. In other words, JA, the victim, was singled out and his movement on the playground was restricted, just like WJ, the perpetrator. JA’s teacher agreed at trial that this separation and restriction made JA conspicuous and could signal to the child that he should not have told anyone about the touching.

JA’s teacher questioned JA and WJ in the presence of the class. She also expressed frustration at having to meet with the DCS worker about the incident with JA and WJ. She “was very upset and yelled that she could not believe CPSI Beckham was there to look into ‘that.’” JA’s parents reported to DCS that they were concerned about the lack of notification and information from the school. Under Title IX, schools are held liable only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.

The Court found that the harassment by ML was severe, pervasive and objectively offensive. Hitting a little girl in her private area multiple times is severe and objectively offensive. The numerous in-school suspensions, isolation, and full suspension for “immoral or disreputable conduct,” punching others in their private area, touching and hitting other students, including more than once on the school bus, having “vulgar, obscene or pornographic images” - these actions are severe and objectively offensive. Multiple acts of

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Tennessee School Law Quarterly touching, rubbing and “humping” MB are severe and objectively offensive. Putting his head between BE’s legs and trying to lick her vagina is severe and objectively offensive.

All these acts together, for a period of years, were pervasive.

With regard to WJ, inappropriately touching, rubbing and “humping” JA numerous times in first and second grade is severe and objectively offensive. Despite minimizing by the Director of Schools and the teachers the actions of these two boys were sexual, severe, pervasive and objectively unreasonable.

peer-on-peer sexual harassment of her child. They failed to explain why she needed to ask MB if anything inappropriate had happened at school. Defendant never told MB’s parents that the phone call was made because ML had admitted inappropriately touching their son.

BE’s parents were not advised about a computer lab incident until BE herself told them. The vice-principal told them nothing had happened. No one from the School told JA’s parents about a movie incident. JA’s parents reported to DCS that they were concerned about the lack of notification and information from the school.

To be liable, a school must have possessed enough knowledge of the harassment that it reasonably could have responded with remedial measures to address that harassment. To avoid liability, the school must merely respond to known peer harassment in a manner that is not clearly unreasonable. Id. Title IX liability can flow from two “harassment” time periods: (1) when the school exhibits deliberate indifference before a harassing attack on a student by a fellow student, in a way that makes the student more vulnerable to the attack; and (2) when a school exhibits deliberate indifference after a harassing attack that causes a student to endure additional harassment.

The Court found that Plaintiffs presented sufficient credible evidence that Defendant had actual knowledge of the sexually harassing behavior of ML. Defendant’s employees knew, at least from kindergarten on, that ML was inappropriately touching other students. His preschool teacher and his kindergarten teacher were both aware of inappropriate touching in their classes. They did not pass that information on to the parents or to ML’s first grade teacher.

Similarly, ML’s first grade teacher knew about the report from Vanderbilt and did not pass that information on to the parents. The evidence at trial reflected that ML had a pattern of sexual misconduct which was known by a crosssection of individuals in the school system. Each year, from pre-school to kindergarten to first grade to second grade, reports of ML’s inappropriate behavior were known to employees of Defendant and yet information was not shared.

The Court also found that Defendant’s response to the sexually harassing behavior was clearly unreasonable, such that it amounted to deliberate indifference. For example, Defendant failed to communicate honestly with the parents. MB’s teacher failed to tell his parents that MB and two other boys were being segregated from the rest of the students and required to stay with the teacher at all times.

The vice-principal and principal both failed to explain to MB’s mother that the “ongoing investigation” they told her about in the April 2012 phone call involved alleged

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Moreover, Defendant failed to communicate with ML’s teachers about his ongoing inappropriate misconduct or the reasons for his Safety Plan. The School’s guidance counselor testified that there were no means by which accusations of peer-on-peer sexual abuse could be collected to identify behavioral threats to other children. Thus, Defendant could not advise teachers to be alert to previously-noted sexual and/or abusive behaviors. When Defendant developed a Safety Plan for ML to monitor his behavior, teachers were told only to monitor ML, not why and not what specific behaviors to guard against. The School’s principal, when asked whether it would be useful, in terms of learning how to cope with a child, to have known about his prior conduct, responded, “That would be with any child.” She stated that the School had no means to access or store information about ML’s prior inappropriate behavior - or such behavior of any of their children. She agreed that it would have been useful to have knowledge of what a child was accused of doing in the past to inform her impression of what he was charged with later.

Defendant has argued that “privacy concerns” led to the failure to report or share information with other teachers or with parents. The law, however, allows the release of information to other school officials, including teachers, who are determined to have legitimate educational interests.

20 U.S.C. § 1232g (b)(1)(A). In addition, the law allows the release of information to appropriate persons, in connection with an emergency, if the knowledge of such information is necessary to protect the health or safety of the student or other persons. 20 U.S.C. § 1232g (b)(1)(I).

Defendant argued that its prompt response to receiving the phone call from DCS about ML is evidence of the lack of deliberate indifference. Defendant’s employees met to develop a Safety Plan for ML. The plan it developed, however, was not explained to the appropriate persons and recommended a strategy (isolation or separation) which had

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Tennessee School Law Quarterly not worked in the past. Although the deliberate indifference standard does not mean the Court can second guess a school’s disciplinary actions, the Court must act when the school’s response to sexual harassment of students, or lack thereof, is clearly unreasonable in light of the circumstances.

For these reasons, the Court found that Defendant violated Plaintiffs’ Title IX rights through its deliberate indifference to known peer-on-peer sexual harassment at East Robertson Elementary School.

Additionally, the Court found that Defendant’s failures in properly training its employees amounts to deliberate indifference to the safety and needs of students. Therefore, the Court finds that Defendant is liable under 42 U.S.C.§ 1983 for its failure to train employees about the proper ways to recognize, report, document, deal with peer-on-peer sexual harassment, and help victims.

As to damages the court found: • MB moved to a private school because of these incidents. He is entitled to the tuition amounts for the private school from the date he moved there through fifth grade, when he would have left East Robertson Elementary had these things not occurred. MB is entitled to the costs of his counseling/therapy from the date he began the counseling until the date of trial. MB is also entitled to an amount of money damages for emotional distress.

• BE is entitled to the costs of her counseling/therapy from the date she began the counseling until the date of trial and to an amount of money damages for emotional distress.

• JA is entitled to the costs of his counseling/therapy from the date he began the counseling until the date of trial and to an amount of money damages for emotional distress.

In concluding remarks “the court stated the evidence at trial demonstrated a serious lack of sensitivity by the Defendant school system to peer-on-peer sexual harassment and inappropriate touching. Known information was not shared with parents or other school employees, despite the need to prevent and deal properly with such abuse. Children who were victims of such abuse were shamed, not believed, made to apologize, told to drop it, or required to remain with the perpetrator at all times, all in front of the other children. Parents who were genuinely concerned about their children were treated with indifference and lied to about what was really happening. For all these reasons, the Court finds that Defendant is liable to Plaintiffs under Title IX and Section 1983 for its deliberate indifference in this case.”

We will monitor and report on this case if it is appealed to the 6th Circuit Court of Appeals.

F.H. v. Memphis City Schools 6th U.S. Circuit Court of Appeals, September 24, 2014 F.H. was born on August 29, 1994. He was diagnosed with cerebral palsy syndrome as an infant. F.H. has also been diagnosed with asthma, and sleep apnea. F.H. has auditory and visual limitations and significant learning disorders. F.H. has needed a wheelchair or walker since he was a small child. F.H. also has limited use of his hands, which makes it difficult for him to reach around himself, and to use the bathroom without assistance.

F.H. began attending Appellee MCS schools in 2002. During his enrollment in MCS, Ms. Hall informed the staff of F.H.’s disabilities and specific needs. From 2002 until 2010, F.H. attended four different schools and had eleven different aides assigned to him to render assistance throughout the school day, including to supervise and assist F.H. when using the restroom. Appellant F.H. remained enrolled in MCS until his graduation in May 2013.

Appellants’ Amended Complaint makes a litany of specific allegations of physical, sexual, and verbal abuse of F.H. by MCS aides over the course of F.H.’s enrollment in MCS. Appellants highlight the following allegations: 1. Being frequently left unattended and unsupervised in the bathroom, distraught and crying, unable to clean himself; And in one case he suffered a seizure;

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Tennessee School Law Quarterly 2. Verbal and physical abuse, on multiple occasions from different aides and school personnel, allowing him to return from the bathroom, in one case, with bloody underwear; 3. Being ridiculed about his disability (cerebral palsy) and told that he would, “never amount to anything;” until F.H. screamed and banged his head against the wall in frustration; 4. Aides and school employees regularly failing to help F.H. clean himself, so that he returned to class with dirty underwear, and on at least one occasion an aide announced to the class that F.H. smelled like “s**t;” 5. Being sexual abused by an aide on more than one occasion while in a private bathroom.

The releases set forth above do not apply to any disputes that may arise by reason of acts or omissions occurring after the date of execution of this Agreement.

It is understood that no aspect of this Agreement shall release, (or is intended to release or waive any right or remedy against) any Part from liability for any postAgreement new wrongful acts or omissions, including independent torts, unrelated to the provisions of this Agreement.

This Agreement was reached at a Resolution Session and is enforceable in state or federal court pursuant to 20 U.S.C. § 1415(f )(1)(B)(iii).

As the local education agency (LEA), the IDEA requires that MCS create an Individualized Education Plan (IEP) for F.H. and other disabled students. The IDEA guarantees these children a Free Appropriate Public Education (FAPE) in conformity with the IEP. The IDEA also provides specific procedural recourse should an involved party object to the construction or implementation of the IEP.

Plaintiffs-Appellants filed suit against Defendant-Appellee Memphis City Schools (MCS) alleging Appellee allowed for the abuse and neglect of F.H. while enrolled in its schools, and allege Appellee breached a Settlement Agreement. The district court granted Appellee’s motion to dismiss all claims, finding that Appellants’ claims accruing prior to the Settlement Agreement were barred by this Agreement, and that all other claims required exhaustion under the Individuals with Disabilities Education Act (IDEA). Appellants now appeal the district court’s dismissal of the 42 U.S.C. § 1983 and the breach of contract claims.

In April of 2011, Ms. Hall initiated this process by filing a request for a due process hearing on behalf of F.H. Under IDEA, within 15 days of a request for a due process hearing, the parents, members of the IEP team, and a representative of the LEA are required to participate in a resolution session, giving the LEA an opportunity to resolve the complaint.

On May 2, 2011, Ms. Hall met with representatives from MCS for a resolution session. During the resolution session, the parties reached a tentative settlement. On August 9, 2011, Ms. Hall and a representative of MCS signed a finalized Settlement Agreement. This Settlement Agreement includes the following terms: Student and his Parent, and each of them, on behalf of themselves . . . hereby fully and forever release and discharge the District . . . from any and all claims . . .arising under the IDEA and concomitant provisions of STATE law enacted in compliance therewith, including, but not limited to, any matter or claim which was, or could have been, asserted in the Due Process Proceeding, by reason of any matter, cause or thing whatsoever occurred, done, omitted, or suffered to be done on or before the last day of the Settled Period, which Student and his Parent, or any of them, now owns or holds, or may at any time hereafter own or hold. ....

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The Court found that Appellants’ § 1983 claims do not arise under the IDEA, were not released by the Settlement Agreement, and that the administrative exhaustion of these claims would be futile. The Court also found that the language of the Settlement Agreement, as well as the 2004 Amendments to the IDEA, render the Settlement Agreement enforceable in the courts, and therefore, that the breach of contract claim does not require administrative exhaustion. As such, the Court reversed the district court’s dismissal of Appellants’ Amended Complaint, and remanded for further proceedings consistent with this opinion. http://www.ca6.uscourts.gov/opinions.pdf/14a0223p-06.pdf

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Tennessee School Law Quarterly Attorney General Opinions Attorney General Opinion No. 14-99 Constitutionality of Tennessee Teacher-Employment Statutes QUESTION In light of the California decision in Vergara v. State, do the current Tennessee statutes, or the statutes in effect prior to July 1, 2011, governing permanent employment, layoffs, and dismissal or suspension of teachers violate students’ rights to a free education under the Tennessee Constitution, Art. XI, § 12, or the equal-protection provisions of the Tennessee Constitution, Art. I, § 8; Art. XI, § 8, or the Fourteenth Amendment to the United States Constitution?

ANSWER No. The Tennessee teacher-employment statutes do not violate a student’s constitutional right to a free education. http://www.tennessee.gov/attorneygeneral/op/2014/op14-99.pdf

Attorney General Opinion No. 14-102 Supermajority Voting Requirement QUESTIONS 1. With respect to a local board of education, Tenn. Code Ann. § 49-2-202(g) provides that “[a] majority of the members constituting the board, and not merely a majority of the quorum, shall be required to transact all business coming before the board in regular or special meetings.” Assume a nine-member local board of education hires a school superintendent and approves the superintendent’s employment contract by a vote of five to four. A provision of that contract provides that the superintendent may be terminated only upon the vote of two thirds of the board’s members, that is, six members. Does the supermajority contract provision override Tenn. Code Ann. § 49-2-202(g)?

2. Is a subsequent school board of newly-elected members bound by the supermajority contract provision?

ANSWERS 1. A board of education may not, by contract, limit its statutory decision-making authority by requiring a supermajority vote to approve termination of a director of schools when the statute provides for termination by majority vote.

2. No. The supermajority voting requirement is unenforceable. http://www.tennessee.gov/attorneygeneral/op/2014/op14-102.pdf

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Tennessee School Law Quarterly Employment Law Seminar March 27, 2015

Tennessee School Law Quarterly Published by: The Tennessee School Boards Association 525 Brick Church Park Drive Nashville, TN 37207 Phone: 615/815-3900 800/448-6465 Fax: 615/815-3911 Layout and Design by: Ben Torres Director of Research and Communications/Staff Attorney Content by: Randall Bennett TSBA Deputy Executive Director & General Counsel rbennett@tsba.net 615/815-3902 Weâ&#x20AC;&#x2122;re on the web! Visit us at: www.tsba.net Disclaimer: The information in this issue represents the opinions of the writers and does not necessarily represent the official position of TSBA

Fall 2014

The TSBA Employment Law Seminar is designed just for superintendents, principals, administrators, school board members, and board attorneys. The 2015 Seminar will take place at TSBA Headquarters and via distance learning at Lauderdale County and McMinn County.

8:00

Introduction and Overview

8:05

Collaborative Conferencing & Legislative Update

8:55

Teacher Tenure & The Evaluation Process

9:55

Break

10:10

11:10

Dangerous Mind: Evaluating Direct Threats Under the ADA

12:10

LUNCH (provided)

1:00

Teacher Licensing Update

2:00

Vance Revisited: What it Means to be a Supervisor

Break

2:15 FMLA & FLSA: What you

May/Should Do 3:00

Employment Law Case Update

3:45 Evaluations and Adjourn

The registration deadline is March 13th. The registration fee is $125 per person and must be received by TSBA prior to the meeting on March 27th. Cancellations must be made in writing prior to March 13th to receive a full refund. Cancellations received on or after March 13, 2014, will be assessed the full registration fee. Materials will be sent to those attending via distance learning.

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Tennessee

Spring 2015

School Law Quarterly A TSBA Publication for School Board Attorneys, Board Members, and Administrators

Table of Contents Volume 15, Issue 1 Pages 1

City of Athens BOE v.

McMinn County

Pages 3

Pamela Barkley v. Shelby County BOE

Pages 4

Attorney General Opinions

Page 5

Summer Law Institute

City Of Athens Board Of Education et al. v.

McMinn County, Tennessee et al., Tennessee Court of Appeals, August 27, 2014 This litigation is a dispute between the boards of education of the cities of Athens and Etowah (“the City School Boards”) on the one hand and McMinn County (“the County”) over the distribution of tax revenues among the various school systems within the county. Tenn. Code Ann. § 49-3315(a) (2013) mandates that “[a]ll school funds for current operation and maintenance purposes collected by any county . . . shall be apportioned by the county trustee” among the local education agencies in the county based upon average daily school attendance. Over the years spanning from 1996 to 2011, the County apportioned funds in the account designated “general purpose school fund” to the City School Boards, but did not apportion funds from the County’s “educational capital projects fund.” The County argues that funds appropriated for and spent on school capital projects are not “school funds for current operation and maintenance purposes” under the language of the statute.

The resolution of this case turns on the interpretation and application of Tenn. Code Ann. § 49-3-315(a), part of the Tennessee Education Finance Act of 1977. Section 49-3-315(a) provides, in pertinent part, as follows: For each [local education agency] there shall be levied for current operation and maintenance not more than one (1) school tax for all grades included in the LEA. Each LEA shall place in one (1) separate school fund all school revenues for current school operation purposes received from the state, county and other political subdivisions, if any. . . . All school funds for current operation and maintenance purposes collected by any county, except the funds raised by any local special student transportation tax levy as authorized in this subsection (a), shall be apportioned by the county trustee among the LEAs in the county on the basis of the [weighted full-time equivalent average daily attendance] maintained by each, during the current school year.

All of the material facts are undisputed. The budget passed by the McMinn County Commission for fiscal year July 1, 2010 through June 30, 2011, included a proposed revenue item of $7,051,942 designated for and allocated to the general purpose school fund. The County states that this “represents 141

Tennessee School Law Quarterly or constitutes the only . . . funds proposed to be collected by the County which . . . constitutes the County Board of Education’s apportioned share of school funds from current property taxes pursuant to T.C.A. Section 49-3-315(a).”

The budget also included estimated funds in an account designated “other capital projects fund” in the amount of $3,482,190. These funds were not apportioned among the County LEA and the LEAs of the Cities of Athens and Etowah. The County undertook a similar budgeting approach in earlier years.

under earlier, and similar, statutory language pertaining to school funding. In each of its opinions, the High Court has noted a clear distinction between funds for current operation and maintenance and funds for capital projects. The Court discussed a number of Supreme Court rulings in similar holdings dating back to 1946 (see pp. 7-9 of the PDF opinion).

The City School Boards do not allege that funds allocated for capital projects were not actually spent on capital projects. Nor do the City School Boards argue that the County’s budgeting and spending process runs afoul of the wellestablished rule that “it is beyond the power of count[ies] of this State to take moneys raised for school purposes and appropriate them for other different purposes, or to take moneys raised for purposes other than school purposes and use them for school purposes.” The City School Boards’ argument is that Tenn. Code Ann. § 49-3-315 requires a county to apportion among local education agencies in the county all school funds collected by the county, regardless of whether a portion of those funds are appropriated and allocated for educational capital projects. The County responds by asserting that the plain and express language of Tenn. Code Ann. § 49-3-315(a) requires it to share only “all school funds for current operation and maintenance purposes collected” by the County, and that funds properly designated for capital projects are not “for current operation and maintenance purposes.”

Both sides moved for summary judgment. The parties agree that the pertinent facts are undisputed and this case presents a question of law that is suitable for summary judgment. The trial Court granted summary judgment to McMinn County and the Cities appealed.

The Court noted that the cited decisions stand for the proposition that a county may levy a special tax designated for a capital projects fund such as “for the building, repair, and equipment of rural schools,” or a “Rural School Building and Repair Fund,” without being required to allocate part of the funds to city school systems within the county.

The Supreme Court reaffirmed this view in City of Harriman the same year the Tennessee Finance Act of 1977 was passed. Where, however, the county does not make such a special purpose levy, but lawfully appropriates funds to current school operations, as had been done here with the portion of sales taxes at issue, then those funds become subject to the apportionment provisions of the general school statutes. In the Southern case, supra, the county allotted tax proceeds to the school budget under the guise of a special levy for repair and maintenance. It was held that these funds had to be divided with a city school system. See 183 Tenn. at 290-291, 195 S.W.2d 857.

The City School Boards point out that under the Education Finance Act, if the County had raised money for capital projects by issuing and selling school bonds, it would have been required to apportion the funds raised from selling the bonds. Tenn. Code Ann. § 49-3-1002 authorizes a county to issue and sell “general obligation school bonds.” Tenn.

Code Ann. § 49-3-1003(b)(1) requires counties to share the funds raised from selling the bonds with city school systems as follows:

On appeal the court discussed the language of statute, Tenn.

Code Ann. § 49-3-315(a), which requires that “[a]ll school funds for current operation and maintenance purposes collected by any county, except the funds raised by any local special student transportation tax levy as authorized in this subsection (a), shall be apportioned by the county trustee among the LEAs in the county on the basis of the WFTEADA maintained by each, during the current school year.” The question is whether funds allocated for school capital projects are included in “school funds for current operation and maintenance.” Although Tennessee courts have not decided this exact issue under the current Education Finance Act, the Supreme Court has addressed this issue

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In counties having a city or cities operating schools independent of the county, the trustee of the county shall pay over to the treasurer of the city that amount of the funds that bear the same ratio to the entire amount arising from this part as the average daily attendance of the year ending June 30 next preceding the sale of the bonds of the city or cities bears to the entire average daily attendance of the year ending June 30 next preceding the sale of the bonds of the county; provided, that the funds paid over to the city treasurer shall be kept separate from all other funds in the manner and for the purposes provided in this part for the county funds to be used.

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Tennessee School Law Quarterly Tenn. Code Ann. § 49-3-1004(a) provides that the funds from general obligation school bonds shall be spent as follows: The proceeds from the sale of school bonds issued under §49-3-1002 constitute a special fund to be known as the special school fund, except funds for aiding this state in the construction of state education facilities or institutions as provided for in subsection (b), which shall be kept by the trustees of such county and the treasurer of the city schools separate and apart from all other funds and shall be applied exclusively to purchase property for school purposes, to purchase sites for school buildings, to erect or repair school buildings, to furnish and equip school buildings and to refund, call or make principal and interest payments on bonds or other obligations previously issued for the same purposes, and to be used for no other purposes by the county board of education of the county, the city board of education or the governing board of the city.

The City School Boards acknowledge that Tenn. Code Ann. §§ 49-3-1002 through -1004 do not apply in this case, but argue that “[i]t is inconceivable or an absurdity to believe that the General Assembly, when enacting the Tennessee Education Finance Act of 1977, intended that a city school system share based upon average daily attendance in funds derived from a bond issue for capital improvements, but not receive its fair share of school funds derived from City Schools property taxes if the funds from City Schools property taxes are designated for capital improvements within the county school system.” However compelling this argument may be, it is properly directed to others, e.g., the General Assembly, not to this Court. The statutory scheme as currently written is clear and unambiguous, and it does not require apportionment under the circumstances presented. Since we must apply Tenn. Code Ann. § 49-3-315 as written, we reject the City School Boards’ invitation to take a different approach. The trial court decision was affirmed. http://www.tsc.state.tn.us/sites/default/files/athens_v_mcminn_co.pdf

Pamela Barkley, et al. V. Shelby County Board Of Education Tennessee Court of Appeals, April 12, 2014 This was an action under the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101 et seq., (“GTLA”) to recover for injuries sustained by Pamela Barkley, the grandmother of two children who attended Riverdale Elementary School in Memphis, when she fell in a hallway at a Grandparent’s Day event; the school is operated by the Shelby County Board of Education (“the Board”).

In a bench trial, the court held the school board 60% liable and plaintiff 40% liable. Following trial, the court made findings of fact and conclusions of law, on the basis of which it assessed damages at $45,000 for Ms. Barkley and $4,000 for the loss of consortium claim of her husband, James. The court determined that Ms. Barkley was 40% at fault, reduced the damages accordingly, and entered judgment for the plaintiffs in the total sum of $29,400.

School Board appealed, articulating the following issues: 1. Whether the proof in the record preponderates against the Trial Court’s finding that the SCBE was negligent.

2. Whether the trial court erred by finding that the SCBE is not immune to suit pursuant to Tenn. Code Ann. § 2920-205, or in the alternative the public duty doctrine.

3. Whether the record preponderates against the trial court’s finding that the Plaintiff was not at least fifty percent at fault for her injury.

While the evidence did not preponderate against the finding that plaintiff fell on water in the school hallway, there was no evidence that the Board had notice of the water. Consequently, the Court of Appeals reversed the judgment of the trial court and dismissed the case. http://www.tsc.state.tn.us/sites/default/files/barkleypamelaopn.pdf

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Tennessee School Law Quarterly Attorney General Opinions (Below you will find the questions and opinions issued by the office of the Attorney General. For a more thorough analysis, click on the link following the opinion.)

Attorney General Opinion No. 15-10 Transportation for Elementary and Secondary School Students QUESTIONS 1. Are there any restrictions on transportation fees charged by municipal boards of education?

If yes, then: 2. Is it permissible to charge a transportation fee to students not included in the BEP calculation for transportation funding (students living within 1.5 miles of the school)?

3. Is it permissible to charge a transportation fee to all students to generate the funding necessary to bridge the difference between the transportation funds provided under the BEP formula and the total cost of delivering transportation services?

ANSWER There are no restrictions on the transportation fees that can be charged by municipal boards of education. http://www.tennessee.gov/attorneygeneral/op/2015/op15-10.pdf

Attorney General Opinion No. 15-11 Arbitration of Disputes Involving Remittance of Liquor-by-the-Drink Tax Revenue QUESTION In the event of a dispute between local governmental entities over the remittance of liquor-by-the-drink tax revenue, does Tenn. Code Ann. § 49-2-203(d)(3)(A)(ii) authorize the Comptroller of the Treasury to undertake binding arbitration to resolve the dispute upon the unilateral request of one party?

ANSWER Yes, provided one party requested arbitration on or before December 31, 2014, and the other party failed to pursue the statuteâ&#x20AC;&#x2122;s alternative remedy of seeking equitable relief in the Davidson County Chancery Court on or before that date, then the Comptroller is authorized to undertake binding arbitration to resolve the dispute upon the unilateral request of the first party, even absent the affirmative agreement of the second party. http://www.tennessee.gov/attorneygeneral/op/2015/op15-11.pdf

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Tennessee School Law Quarterly Summer Law Institute June 26 & July 24-25

Tennessee School Law Quarterly Published by: The Tennessee School Boards Association 525 Brick Church Park Drive Nashville, TN 37207 Phone: 615/815-3900 800/448-6465 Fax: 615/815-3911 Layout and Design by: Ben Torres Director of Research and Communications/Staff Attorney

The Annual Summer Law Institute sponsored by TSBA, in conjunction with the Tennessee Council of School Board Attorneys, presents its annual Summer Law Institute for board members, school administrators and school board attorneys. Visit TSBA’s website for more details at www.tsba.net.

Topics • • • • • • • • •

Legislative Update Board Exposure to Civil Rights Lawsuits School System Liability Student Free Speech Rights Case Law Updates BEP Funding Issues* How to Avoid Litigation Special Education Law Updates* Ethics CLE* *Sessions offered in Gatlinburg Only

Content by: Randall Bennett TSBA Deputy Executive Director & General Counsel rbennett@tsba.net 615/815-3902

June 26, 2015 - Doubletree Hotel in Jackson, TN

We’re on the web! Visit us at: www.tsba.net

The Gatlinburg Summer Law Institute will be held July 24, 2015 from 8:00 a.m. - 5:20 p.m. with breakfast, breaks and lunch provided and on July 25, 2015 from 8:30 a.m. - 10:30 a.m. with breakfast provided.

Disclaimer: The information in this issue represents the opinions of the writers and does not necessarily represent the official position of TSBA

July 24-25, 2015 - Park Vista Hotel in Gatlinburg, TN The Jackson Summer Law Institute will be held June 26, 2015 from 8:00 a.m. - 4:00 p.m. Breakfast, breaks and lunch will be provided.

Registration Fees TSBA Board Members and TCSBA Members: $150 Non TSBA & Non TCSBA Members: $300 Registration fees must be received by TSBA prior to the meeting. Please make checks payable to the Tennessee School Boards Association.

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Tennessee

Summer 2015

School Law Quarterly A TSBA Publication for School Board Attorneys, Board Members, and Administrators

Table of Contents Volume 15, Issue 2 Pages 1

CEF v. Cleveland Metro Schools

Page 2

Ward v. Knox County BOE

Page 2

Gellar v. Henry County BOE

Page 3

Smith v. Jefferson County Bd. Sch. Comm’r

Page 4

Fry v. Napoleon Comm.

Schools

Page 5

Hamilton Cty. Educ.

Assoc’n v. Hamilton County BOE

Page 6

Emory v. Shelby County BOE

Page 6

Barkley v. Shebly County BOE

Page 7

Rutherford Wrestling Club v. Arnold

Page 8

Attorney General Opinions

Child Evangelism Fellowship of Ohio, Inc. v.

Cleveland Metro Sch. Dist., Sixth Circuit Court of Appeals, March 19, 2015 In this First Amendment case, the plaintiff Child Evangelism Fellowship of Ohio, Inc. (“CEF”) appealed the denial of its motion for a preliminary injunction against defendant Cleveland Metropolitan School District (“the District”). This controversy arose out of the District’s refusal to waive fees it assessed to CEF for use of school’s facilities. The District made its facilities available to outside groups through its Community Use Policy. The policy required a permit for any non-district activities and stated that the District would impose a “reasonable fee” for use of the facilities. CEF obtained the permit and sent a letter to the District’s Board of Education requesting a fee waiver. The District’s board denied the request and sent CEF an invoice for the facilities use. After learning that the Boy Scouts used the District’s facilities without paying a monetary fee, CEF renewed its request for a fee waiver which the District denied.

CEF sued and alleged that the District had an unwritten policy allowing school principals to waive facilities fees at their discretion, and that the District’s preferential fee waiver for the Boy Scouts amounted to a violation of the First and Fourteenth Amendments. The District denied the allegation and explained that “in limited circumstances [the District] has agreed to accept goods or services as in-kind payment of the Permit Fee, when requested by the group.” The District said it had agreed to such an arrangement with the Boy Scouts. It produced a letter to the Scouts memorializing a “satisfactory accord based upon an exchange of in-kind services.” The District asserted that it does not consider the applicant organization’s viewpoint when evaluating a proposal for an in-kind arrangement. Finally, the District claimed that CEF never proposed an in-kind arrangement in lieu of a monetary fee. Instead, it simply asked the District to waive the fee altogether.

The district court denied CEF’s motion for a preliminary injunction.

The court found that CEF could not demonstrate a likelihood of success on the merits because the record lacked sufficient evidence to show that “a fee-waiver policy exists, let alone that [the District] operates it in a discriminatory matter.”

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Tennessee School Law Quarterly The parties agreed that CEF engaged in protected activity and that the District had created a limited public forum.

On appeal, CEF renewed its argument that the District maintained an unwritten, discretionary fee-waiver policy that administrators had applied in a discriminatory manner. CEF argued that the District’s actions constituted viewpoint discrimination, content discrimination, and a violation of the Equal Protection Clause. CEF asserted that the District’s refusal to waive CEF’s fees while not charging the Boy Scouts amounted to viewpoint discrimination.

The Court of Appeals found that CEF’s evidence in support of its request for injunctive relief did not adequately show that the District had a fee-waiver policy. The court concluded that the record at this stage showed that the Scouts provided consideration in excess of their assessed facilities fees, strengthening the District’s argument that its in-kind arrangements do not subsidize speech at all, let alone selectively, and affirmed the district court. http://www.ca6.uscourts.gov/opinions.pdf/15a0220n-06.pdf

Michael S. Ward d/b/a Feredonna Commc’n v. Knox Cnty. Bd. of Educ., Sixth Circuit Court of Appeals, May 11, 2015 Since 1989, Knox County children have sold coupon books as part of an annual fundraising campaign for their county’s schools. Michael Scott Ward and Feredonna Communications (collectively, Feredonna) won the contract to print Knox County’s coupon books in 1994. The relationship between Feredonna and Knox County lasted until 2009, when Knox County switched to another, lower bidder.

In 2011, Feredonna filed suit against both the Knox County Board of Education and Knox County, alleging that Knox County’s coupon books infringed on the trademark, trade dress, and copyright of Feredonna’s coupon books. The district court denied Feredonna’s requests for a temporary restraining order and a preliminary injunction, and eventually granted Knox County’s motion for summary judgment.

The Court of Appeals affirmed the district court by concluding that the School Coupon mark associated with the book was not entitled to trademark protection. It then opined that the plaintiff ’s trade dress argument failed because the plaintiff could not establish that the disputed trade dress had acquired secondary meaning. The Court also affirmed the district court’s summary judgment on copyright infringement by stating that Feredonna did nothing more than change the style and format of the language submitted by merchants, which the Sixth Circuit has held as not enough to reflect the requisite originality. http://www.ca6.uscourts.gov/opinions.pdf/15a0352n-06.pdf

Stephen P. Geller v. Henry Cnty. Bd. of Educ.

Sixth Circuit Court of Appeals, June 1, 2015 Stephen Geller began working for Henry County Schools in 1990. Following the 2011–2012 school year, he was removed from the assistant principal position and transferred to a teaching position. Geller was 64 years of age at the time of this demotion, and claimed that his removal was based on age discrimination.

In 2009, the State of Tennessee adopted new rules for the qualification of administrative positions. Beginning in September of that year, personnel with more than fifty percent of their responsibilities involved in instructional leadership were required to be licensed administrators or enrolled in the appropriate licensing program. Geller was aware of the new requirement, but chose not to apply. In the spring of 2012, Geller submitted an application for an upgraded license, despite the fact that he had never earned a license. The State’s licensing authority notified Geller that his application was denied.

The Director of Schools chose not waive the requirement, but attempted to find Geller a suitable position that he could

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Tennessee School Law Quarterly fill for the coming year. During a meeting, the Director commented on Geller’s plans for retirement by noting that it was a good thing not to wait too late in life to enjoy oneself, as the Director’s father had done. It was undisputed that Geller could have obtained the needed license prior to the commencement of the new school year.

The newly vacant assistant principal position went to Renae Lassiter. She was 39 years old at the time. Geller was offered a teaching position and signed an employment contract accepting his new position. At the bottom of the page he wrote, “I believe I was wrongfully removed as Assistant Principal at Henry County High School and am signing this contract only as a matter of financial necessity.” Prior to receiving Geller’s executed contract that included this message, the Board was unaware that Geller believed his reassignment to be at all wrongful. During two subsequent meetings Geller never suggested that his removal was based on age.

Geller submitted a formal complaint to the Board alleging that he was illegally transferred as the result of his age. Geller believed he was being treated in a discriminatory manner because his transfer was inconsistent with his years of experience and his favorable job performance history, and because he was replaced by a woman with very little experience who was 25 years his junior. The complaint was dismissed after the administrative reviewers found no evidence of discrimination and determined that Geller’s transfer was based on his failure to maintain a license. Geller unsuccessfully appealed.

Geller then brought a suit in district court. The Board moved for summary judgment, based on the undisputed facts, and also indicating that a number of the school system’s administrators, including the Director, were in the same protected age class as Geller and had not been subject to any adverse employment actions, because they had earned an administrator’s license. The district court granted the Board’s motion and Geller appealed.

At the Court of Appeals, Geller did not argue that he had direct evidence of age discrimination so the Court analyzed the evidence under the McDonnell Douglass burden-shifting framework. The parties disputed whether Geller demonstrated a prima facie case of age discrimination. The Court noted that the third element was at issue because Geller could not claim to be qualified since he was required to maintain an administrator’s license and failed to do so. The Court stated that nearly all of the evidence supported the conclusion that Geller was removed from his post based solely on his failure to apply for and maintain an administrator’s license.

The Court also opined that Geller was responsible for keeping apprised of the licensing requirements and for maintaining the appropriate license. The Director had engaged Geller to see if he could or would become licensed, and made reasonable attempts to accommodate Geller. The Court agreed that given the facts, no reasonable jury to conclude that Geller was discriminated against on account of his age, let alone that his age was the but-for cause of the adverse employment action. http://www.ca6.uscourts.gov/opinions.pdf/15a0392n-06.pdf

Steve B. Smith, David Kucera, and Vicky Forgety v. Jefferson Cnty. Bd. of Sch. Comm’r, Sixth Circuit Court of Appeals, June 11, 2015 In this action, two alternative school teachers brought a suit against the district, asserting a violation of the Establishment Clause after the district’s Board voted to eliminate the district ran alternative school program and contract with a local religious school, Kingswood, to provide alternative-school services. The Sixth Ciruit had previously ruled that the plaintiff teachers had standing, in their capacity as municipal taxpayers only, to raise the Establishment Clause claim.

Kingswood had two separate programs: the day program and the residential program. The residential program served troubled, neglected, and abused children and maintained a religious character and included deliberate religious instruction.

The day program, however, did not feature deliberate religious instruction and was the program that Jefferson County students attended. Students were not entirely insulated from the schools religious environment, however, since forms,

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Tennessee School Law Quarterly report cards, school letters, official documents and the school’s website contained scriptures from the Bible. In July 2013, the district court issued its findings and held that the Board had violated the Establishment Clause. The court enjoined the Board “from contracting with Kingswood or another religious entity for the operation of its alternative school.” It also awarded plaintiffs damages for lost wages.

On appeal, The Sixth Circuit weaved together the Lemon Test and Justice O’Connor’s Endorsement Analysis from Lynch v. Donnelly, which the Court viewed as a clarification of the Lemon Test. The Court of Appeals agreed that the Board had a secular purpose in contracting with Kingswood. The Court then found the district court’s conclusion that the Kingswood atmosphere was coercive to be clearly erroneous. Students were not coerced into taking part in religious activity of any kind, and classroom activities did not include religious instruction, prayers, or moments of reflective silence. The Court of Appeals then looked at the case from the perspective of a reasonable observer and concluded that the relationship between the Board and Kingswood could not be interpreted as a governmental endorsement of religion. Parents and students encountered only de minimis religious references in Kingswood’s day program. The Board chose a high-performing, statecertified alternative school on short notice to fulfill its obligation. The move saved significant taxpayer money and ensured that the alternative students received a sound education over the course of the seven-year arrangement. The mere status of Kingswood as a religious organization did not itself give rise to an endorsement. As a result, the Court reversed the district court and vacated the injunction and damages award. http://www.ca6.uscourts.gov/opinions.pdf/15a0119p-06.pdf

Fry v. Napoleon Cmty. Sch., Sixth Circuit Court of Appeals, June 12, 2015 Does a student’s wish for greater independence qualify as an educational goal? According to a recent 6th Circuit opinion yes. The Court held that issues relating to the presence of the student’s service dog were crucially linked to her education.

The Court ruled that the parents could not pursue Section 504 or Title II claims against a former school district until they exhausted their administrative remedies under IDEA. The majority noted that the exhaustion requirement applies if the IDEA’s Administrative procedures can provide some form of relief or if the claims relate to the provision of FAPE. The parents were disputing the appropriateness of the student’s IDEA services…specifically, they argued the dog’s presence allowed the student to be more independent so that she would not have to rely on a one-to-one aide for tasks such as using the toilet and retrieving dropped items. They also maintained that the student needed the dog in school so that she could form a stronger bond with the animal and feel more confident.

The court reasoned that the parents’ allegations brought the claim squarely within the IDEA’s scope. “Developing a bond with the dog that allows the student to function more independently outside the classroom is an educational goal just as learning to read Braille or learning to operate an automated wheelchair would be. “ The Court affirmed the district court’s ruling that the parents’ failure to exhaust their administrative remedies required dismissal of their Section 504 and Title II claims. The panel was split on the decision 2/1. http://www.ca6.uscourts.gov/opinions.pdf/15a0121p-06.pdf

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Tennessee School Law Quarterly Hamilton Cnty. Educ. Ass’n v. Hamilton Cnty. Bd. of Educ., U.S. District Court, Eastern Dist. of Tenn. at Chattanooga, June 9, 2015 What does “dominate, interfere or assist in the administration of any professional employee organization” or “interfere with, restrain, or coerce employees in the exercise of rights guaranteed in § 49-5-603” mean?

These questions were at the heart of a complaint filed by the Hamilton County Education Association (HCEA) against the Hamilton County Board of Education (HCBOE) and recently decided by the U. S. District Court, Eastern District of Tennessee at Chattanooga.

During the final year of the last EPNA contract with HCEA, there was a concerted effort by the Association to convince principals to continue their membership even though principals and other administrators would no longer be a part of the “bargaining unit” for the purposes of the Professional Educators Collaborative Conferencing Act (PECCA), which replaced the EPNA. When informed of this, Assistant Superintendent for Human Resources Stacy Stewart wrote a letter to Association President Sandra Hughes and stated the following: • •

• •

that the Association could not represent principals or count them among membership totals for the purposes of PECCA that she was concerned regarding other statements made by Association representatives at their September 17 meeting that she worried “could be construed as intimidating” specifically referring to Association claims that, without the Association, teachers could be subjected to ten hour workdays and 100+ page code of conduct documents and could lose medical and retirement benefits she referenced pejorative comments made regarding a competing professional organization; and she closed the letter by citing to the PECCA prohibition on professional organizations attempting to coerce employees. Stewart stated that continuing this conduct would “either result in an official request for a retraction of such statements or in clarification/correction of these statements by the district” (emphasis added).

Based on the letter, HCEA filed the complaint alleging unlawful acts under both EPNA and PECCA as well as a violation of the Association’s First Amendment rights. HCBOE responded by arguing that there was no violation of state or federal law and pointed to its own right in TCA 49-6-606(a)(5) to “express any views of opinions on the subject of employer-employee relations; provided however, that such expression shall contain no threat of reprimand, discharge or promise of benefits.”

After pointing out the obvious flaws in the Association’s arguments the Court found the letter did not violate any provisions of the EPNA or PECCA because if falls squarely within the protective space afforded to the Board in the law referenced in the previous paragraph. Additionally the Court found that the letter did not burden the Association’s right to expressive Association and found for the district on the First Amendment violation claim granting summary judgment to the district on both claims.

(This decision was emailed to the TCSBA listserv on Wednesday June 10).

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Tennessee School Law Quarterly Rogelynn Emory v. Memphis City Sch. Bd. of Educ., now known as Shelby Cnty.

Bd. of Educ., Tennessee Court of Appeals, April 29, 2015 This case was an appeal brought under the Tennessee Teacher Tenure Act in effect during 2005 and 2006 when the events in question occurred. As a tenured teacher, the plaintiff was employed by the Memphis City Board of Education.

In 2005, the principal of Central High School noted that the plaintiff did not appear to have control of her students and demonstrated low levels of teaching. As a result, the principal recommended, and the superintendent agreed, that the plaintiff should be terminated. In response to her suspension letter, the plaintiff requested a hearing before the Board. The Board acknowledged receipt of the letter on November 11, 2005 but failed to hold a hearing on the charges until November 1, 2006 even though the law required a hearing within 30 days after the demand was made. The Board terminated the plaintiff on November 13, 2006.

The plaintiff timely appealed to the chancery court seeking a reversal of the Board’s decision, but no action was taken by the Board until 2011 after the plaintiff filed a motion for default judgment. The trial court held that since the delay did not affect the outcome of the hearing, the Board’s failure to comply with the Tenure Act was harmless and the teacher was not entitled to relief. The Court of Appeals reversed the trial court and awarded back pay for the additional days the plaintiff was suspended without pay after determining that the thirty day hearing requirement was directory in nature. The Court then concluded that since the statute was a directive, the Board’s failure to comply did not void the original termination. http://www.tncourts.gov/sites/default/files/emoryrogelynnopn.pdf

Pamela Barkley, et al. v. Shelby Cnty. Bd. of Educ., Tennessee Court of Appeals, March 18, 2015 This case was brought under the Tennessee Governmental Tort Liability Act to recover for injuries sustained in a slip and fall at a school operated by the Shelby County Board of Education. The plaintiff in the case was Pamela Barkley, the grandmother of two children who attended Riverdale Elementary School in Memphis. Ms. Barkley fell in a hallway during the school’s Grandparent’s Day event. The trial court held the school board 60% liable and plaintiff 40% liable.

The Board of Education appealed the determination that it was negligent, that its immunity was removed, and that the plaintiff was less than 50% at fault for her injury.

The Court of Appeals first set forth the general rule of governmental immunity: “Except as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activities of such governmental entities wherein such governmental entities are engaged in the exercise and discharge of any of their functions, governmental or proprietary.” The Court then turned to a few specific findings of fact made by the trial court: (1) To reach a trash can, Plaintiff walked past a hand washing station that was in the hallway outside the boys’ restroom.

(2) Barkley was wearing “crocs” when she slipped and fell in water near the hand washing station.

(3) Syndi [sic] Whitaker also stated that she saw water in the area by the boy’s hand washing station and that people had tracked through it. She testified that there is soap available at the hand washing station.

(4) Barkley slipped and fell which resulted in her suffering a hip dislocation and required medical treatment and physical therapy.

The Court noted that the evidence was conflicting, particularly with respect to whether Ms. Barkley fell on water which was on the floor, or whether the shoes she was wearing caused her to fall and spill a cup she had in her hand. The Court believed that there was no evidence to support a finding that the Board had actual notice of water on the floor sufficient either to remove the board’s immunity or to otherwise establish liability. It stated that the plaintiff presented no proof as to the length of time the water had been present or any other facts upon which to conclude that the Board had constructive notice of the specific condition. The Court stated that general knowledge of such a condition does not constitute constructive knowledge of a specific condition. As a result, there was no basis upon which to hold the School Board liable.

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Tennessee School Law Quarterly http://www.tncourts.gov/sites/default/files/barkleypamelaopn.pdf

Rutherford Wrestling Club, Inc. v. Robert Arnold, et al., Tennessee Court of Appeals, April 30, 2015 In 1995, a member of the Sheriff ’s Office, Mr. Kennedy, established the Sheriff ’s Athletic Fellowship and Enrichment (S.A.F.E.) program. The program was very successful and in 1998 Mr. Kennedy began a wrestling program under the S.A.F.E. program. As the size of the program continued to grow, Mr. Kennedy in his capacity as a member of the Sheriff ’s department, applied for and received a federal grant to purchase wrestling equipment and insurance. By 2005, the program’s current facilities could not longer support the amount of participants so Mr. Kennedy sought permission to construct a building on school property. The Board approved the request made from the “Rutherford County Sheriff ’s Department Wrestling Club”, which was funded through donations and funds from the Sheriff ’s Office. The club also received 501(c)(3) status from the IRS. In 2010, Mr. Kennedy resigned from the Sheriff ’s Department. After his resignation, the Sheriff removed the equipment from the building. The Board of Education required the club to submit a Use of Facilities Form since it was no longer associated with Rutherford County. When Mr. Kennedy refused, the Director of Schools denied the club access.

The club filed suit on a number of charges and the trial court ultimately dismissed all of the claims, concluding that the Board of Education owned the building and the Sheriff ’s Office owned the contents. The Court of Appeals affirmed the trial court, finding that: (1) the building was constructed on behalf of the S.A.F.E. program, not the wrestling club; (2) the wrestling club was acting as a booster-club-type organization and the building was donated to the school system with title vesting in the Board of Education pursuant to Tenn. Code Ann. 49-6-2006; and (3) the personal property was bought under the auspices of the S.A.F.E. program which was administered by the Sheriff ’s Department. http://www.tncourts.gov/sites/default/files/rutherfordwrestlingclub.opn_.pdf

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Tennessee School Law Quarterly Attorney General Opinions (Below you will find the questions and opinions issued by the office of the Attorney General. For a more thorough analysis, click on the link following the opinion.)

Attorney General Opinion No. 15-18 Public Employer’s Amendment of Retirement Plan Affecting Vested Members QUESTION Presuming that a public employer has adequately reserved the right to amend the retirement benefit plan that it maintains for its non-certificated employees, and the amendment does not impair vested rights or otherwise reduce vested benefits that have accrued at the time of the amendment, may the public employer amend the retirement plan to reduce future benefit accruals and other unaccrued rights of vested members?

ANSWER Yes, assuming that the public employer has adequately reserved the right to amend its retirement benefit plan, the public employer may amend the plan to reduce future benefit accruals of vested members. In order to adequately reserve the right to amend future benefit accruals of vested members, however, the provisions of the retirement plan must be sufficient to apprise members that their future benefit accruals are subject to modification. http://www.tn.gov/attorneygeneral/op/2015/op15-18.pdf

Attorney General Opinion No. 15-25 County Board of Education Vacancies QUESTIONS 1. Why are county commissioners, who have no education requirements and who are not as familiar as a school board with county education issues, allowed to appoint school board members?

2. Would amending Tennessee Code Annotated §§ 49-2-201(a)(1) and -202(e) to allow the members of a county school board to appoint new members to fill vacancies violate Article VII, Section 2, of the Tennessee Constitution?

ANSWERS 1. Article VII, Section 2, of the Tennessee Constitution requires local legislative bodies to make appointments to fill vacancies that occur on local school boards until the next election.

2. Yes. http://www.tn.gov/attorneygeneral/op/2015/op15-25.pdf

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Tennessee School Law Quarterly Attorney General Opinion No. 15-31 Local Agencies Combining Procurement Bids QUESTION Is it possible for a local sheriff â&#x20AC;&#x2122;s office and a school board to combine their food procurement bids in order to take advantage of the higher total purchase amount so that both local governmental entities save money?

ANSWER Yes. http://www.tn.gov/attorneygeneral/op/2015/op15-31.pdf

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Tennessee School Law Quarterly

Tennessee School Law Quarterly Published by: The Tennessee School Boards Association 525 Brick Church Park Drive Nashville, TN 37207

NSBA’s Legal Clips is a service of the National School Boards Association’s Office of General Counsel and the NSBA Council of School Attorneys (COSA).

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Phone: 615/815-3900 800/448-6465 Fax: 615/815-3911 Layout and Design by: Ben Torres Director of Research and Communications/Staff Attorney Content by: Ben Torres Randall Bennett TSBA Deputy Executive Director & General Counsel rbennett@tsba.net 615/815-3902 We’re on the web! Visit us at: www.tsba.net

TCSBA Annual Meeting November 15, 2015 The TCSBA Annual Meeting will be held November 15, 2015 from 10:00 a.m. - 11:30 a.m. at the Opryland Hotel and Convention Center in conjunction with TSBA’s Annual Convention. There will be an opportunity for TCSBA members to gain CLE credit by attending a pre-convention legal workshop from 1:00 p.m. - 4:30 p.m. on Saturday, November 14. The cost of attendance will be $75. Legal Workshop topics include: • • •

Disclaimer: The information in this issue represents the opinions of the writers and does not necessarily represent the official position of TSBA

Summer 2015

155

A look at the legal issues surrounding mold and other environmental issues in school buildlings.

Avoiding joint employment of your contractors’ employees.

Learning what every school board member needs ot know about what the law requires.

Page 10 of 10

156

This is a publication of the Tennessee School Boards Association 525 Brick Church Park Drive Nashville, TN 37207 www.tsba.net