Recent School Law Developments
April 29, 2014
Presented by:
Brian C. Shaw
Schwartz & Shaw, P.L.L.C.
19 W. Hargett St., Ste. 1000
Raleigh, NC 27601

I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
Changes in teacher tenure law and effect of preliminary injunction.
New model teacher contract.
Statutory changes for contract administrators and employees at-will.
Recent voucher legislation and effect of preliminary injunction.
Possible 2014 Legislation
Union County and Rowan County 2013-14 budget disputes.
Charter school salary transparency.
Charter school share of local funding.
Transgender students.
Student discipline and disparate racial impact.
Recent judicial decisions.








Preliminary injunction issued orally from bench by Superior Court Judge Richard
Doughton on April 23, 2014.
No written decision yet.
Case was brought by Guilford County and
Durham County Boards of Education.
Applicability to other LEAs is still unknown.
State presumably will seek immediate appeal.
General Assembly might have legislative response.
Hang on to your hats.




Eliminates career status of all
“teachers” by July 1, 2018.
No more granting of career status after 6/30/13.
Teachers with career status retain career status through 6/30/18 (unless they sign a 4-year contract prior to
6/30/14 as part of the 25% provision).




In 2013-14, some probationary teachers with 3 consecutive years in the LEA may be offered 4-year contracts per the 25% provision.
Otherwise, all teachers who do not have career status shall be offered only 1-year contracts, up through 6/30/18.
Effective 7/1/18, all teachers will be employed on term contracts of 1 year, 2 years or 4 years.




Probationary teachers are only eligible to receive a 1-year contract, except:
25% provision – 4-year contracts shall be offered to 25% of teachers employed by the LEA for at least 3 consecutive years
(whether probationary or career status).
In February, DPI provided a model contract to guide LEAs in the development of contracts that conform to the revised statute.

Teacher Contract Renewal
Effective July 1, 2014 – June 30, 2018
Three types of teachers:

Career status teachers (earned before
2013-14 school year).


Teachers on 4-year contracts expiring
6/30/18 (25% provision).
All other teachers, on 1-year contracts.

Teacher Contract Renewal
Effective July 1, 2014 – June 30, 2018
(cont.)
•
•
•
Superintendent submits renewal recommendation to BOE.
Recommendations apply only to teachers on 1-year contract.
BOE may: o Approve Superintendent’s recommendation; or o Decline to offer a new/renewed contract.

Teacher Contract Renewal
Effective: July 1, 2018
•
•
Superintendent submits renewal recommendation to BOE.
Recommendations for renewal shall include recommended term of the contract, either:
◦ 1 year, for teachers with less than 3 years in the
LEA; or
◦ 1, 2, or 4 years for teachers with 3 or more years in the LEA.

Teacher Contract Renewal
Effective: July 1, 2018 (cont.)
BOE may:
•
•
•
Approve Superintendent’s recommendation;
Decline to offer a new/renewed contract; or
Offer a contract for a term different than recommended by the Superintendent.

•
•
•
•
•
Generally same process as in past, except:
◦ No eligibility for career status.
◦ All recommendations are to renew or nonrenew 1-year contracts, other than 25% provision.
Notify teacher of nonrenewal recommendation by
May 15.
Teacher has right to request and receive reasons and information Superintendent may share with
BOE.
Teacher may request but has no right to BOE hearing.
BOE shall notify teacher of nonrenewal decision by June 15 (extended if teacher requests information or hearing).

Nonrenewal of Teacher Contracts
Effective: July 1, 2014



Nonrenewal of Teacher Contracts
Effective: July 1, 2014 (cont.)
•
•
•
Teacher not recommended for renewal no longer has right to request and receive written reasons and information the Superintendent may share with BOE to support the recommendation.
Teachers not recommended for renewal may petition BOE for a hearing no later than 10 days after receiving notice of Superintendent’s intent to nonrenew.
BOE has discretion to grant hearing.

Nonrenewal of Teacher Contracts
Effective: July 1, 2014 (cont.)


Nonrenewal decisions may not be arbitrary, capricious, discriminatory, for personal or political reasons, or (this is a change) for any reason prohibited by State or federal law.
BOE must give nonrenewal notice by June 15, provided:
◦ If BOE grants teacher’s hearing request, the notification of the BOE’s nonrenewal decision must be given within 10 days of the hearing or later with written consent of the teacher and Superintendent.

Nonrenewal of Teacher Contracts
Effective: July 1, 2014 (cont.)
If BOE discovers that a teacher is continuing to teach in the LEA without a contract, the teacher will be an at-will employee. The BOE must:
1)
2)
Offer the teacher a 1 year contract that expires June 30 of that academic year; or
Dismiss teacher and give teacher 1 month’s additional pay.
◦ Any teacher dismissed under these circumstances is considered an at-will employee and is not entitled to a hearing.





Career Status Teachers
Teachers on Contracts
Administrators – See Topic III
Classified Employees – See Topic III

Dismissal or Demotion During the
Contract Term
•
Career Status teachers:
◦ July 1, 2013 to June 30, 2018: No changes from existing tenure law, G.S. § 115C-325. This statute continues to apply to career status teachers until
June 30, 2018.
◦ Beginning July 1, 2018: Career status teachers lose career status and become contract teachers subject to dismissal or demotion provisions of new
G.S. § 115C-325.1 to -325.14, and may be nonrenewed at the end of the contract term.

•
Teachers without career status:
◦ July 1, 2013 to June 30, 2014: No changes from existing tenure law, G.S. § 115C-325.
Can only be dismissed or demoted during the contract year under the existing tenure law, and may be nonrenewed at the end of the contract year.
◦ Beginning July 1, 2014: All contract teachers may be dismissed or demoted during their contract term under the provisions of new G.S.
§ 115C-325.1 to -325.14, and may be nonrenewed at the end of the contract term.

Dismissal or Demotion During the Contract Term
New G.S. §§ 115C-325.1 to –325.14



New “non-tenure law” provisions are effective July 1, 2014, and apply to teachers without career status and all administrators.
Teachers with career status are governed by current tenure law (§115C-325) until
6/30/18.
Beginning July 1, 2018, new “non-tenure law” provisions apply to ALL teachers and administrators.

Dismissal or Demotion During the Contract Term
New G.S. §§ 115C-325.1 to –325.14 (cont.)
•
Due process rights and procedures are similar to those currently afforded to career status employees, with some significant differences.
Under new G.S. § 115C-325.4:
“Teachers” can be dismissed or demoted during their contract term for the same 15 grounds currently in G.S. § 115C-
325(e)(1).

Dismissal or Demotion During the Contract Term
New G.S. §§ 115C-325.1 to –325.14 (cont.)
“Inadequate performance” under new G.S. §
115C-325.4(a)(1) incorporates the definitions now in G.S. § 115C-325(e)(3):
•
Must consider evaluations prepared in
• accordance with the published policy of the
BOE and any standards adopted by the BOE.
“Inadequate performance” means:
(1) Failure to perform at a proficient level on ANY
STANDARD of the educator evaluation instrument;
OR
(2) Performing in any manner that is below standard.

Dismissal or Demotion During the Contract Term
New G.S. §§ 115C-325.1 to –325.14 (cont.)




Does not include provision in existing G.S. § 115C-
325(e)(3) that failure to notify a career employee of an inadequacy in performance shall be conclusive evidence of satisfactory performance.
Does not include 3-year limitation on conduct justifying dismissal in current G.S. §115C-325(c)(4).
Deletes provisions in current G.S. § 115C-325(e)(3) that allow ratings below proficient to be considered adequate for teachers making progress toward proficiency.
Definition of “demotion” in new G.S. § 115C-325.1(2) adds: “Any reduction of pay as compared to a prior term of contract.” I.e., renewal of a contract at a lower rate of pay is not a “demotion.”

Dismissal or Demotion During the Contract Term
New G.S. §§ 115C-325.1 to –325.14 (cont.)





Hearings before a Hearing Officer appointed by
DPI are eliminated.
Instead, teachers are entitled on request to evidentiary hearings in front of BOE.
Remember, teachers with career status still have right to a Hearing Officer hearing until 6/30/18.
If teacher requests a BOE hearing, it must be held between 10 and 30 days after BOE notifies the teacher of the time and place for the hearing.
The BOE issues the final decision.

Dismissal or Demotion During the Contract Term
New G.S. §§ 115C-325.1 to –325.14 (cont.)
•
•
•
No longer a separate dismissal/demotion procedure for RIFS – same procedure, i.e., hearing before BOE.
No longer a requirement that RIF’d teachers are placed on a list.
Remedies upon judicial review of BOE decision are limited:
◦ Court cannot order BOE to enter into a contract for more than one year (ending June 30).
◦ No monetary damages.

WITHOUT BEING ARBITRARY OR
CAPRICIOUS, PERSONAL, POLITICAL,
OR DISCRIMINATORY





“25% Provision” is ambiguous and arguably self-contradictory.
Lots of room for different interpretations and different implementation by different
LEAs.
Lots of room for discretion.
Guilford BOE/Durham BOE lawsuit alleges statute is “void for vagueness.”

SECTION 9.6.(g): Beginning September 1, 2013, to
June 30, 2014, all superintendents shall review the performance and evaluations of all teachers who have been employed by the local board for at least three consecutive years. Based on these reviews, the superintendent shall identify and recommend to the local board twenty-five percent (25%) of those teachers employed by the local board for at least three consecutive years to be awarded four-year contracts beginning with the 2014-2015 school year. The superintendent shall not recommend to the local board any teacher for a four-year contract unless that teacher has shown effectiveness as demonstrated by proficiency on the teacher evaluation instrument.

SECTION 9.6.(g) (cont.): The local board of education shall review the superintendent's recommendation and may approve that recommendation or may select other teachers as part of the twenty-five percent (25%) to offer four-year contracts, but the local board shall not offer any teacher a four-year contract unless that teacher has shown effectiveness as demonstrated by proficiency on the teacher evaluation instrument.
Contract offers shall be made and accepted no later than June 30, 2014. A teacher shall cease to be employed pursuant to G.S. 115C-325 and voluntarily relinquishes career status or any claim of career status by acceptance of a four-year contract as provided in this section.

For This Selection Process, How Does the General Assembly Define
“Teachers” ?




Classroom teachers only?
Does this include instructional support personnel (i.e., audiologists, guidance counselors, social workers, school psychologists, media coordinators, CTE teachers)?
Legislative fiscal impact was based on application to classroom teachers only.
Attorney General’s Advisory Opinion: “Teacher” includes classroom teachers and instructional support personnel.

Which “Teachers” Are Eligible?
•
• “Teachers” employed by the LEA for at least 3 consecutive years (includes some probationary teachers).
“Teachers” who are effective as demonstrated by their proficiency on the teacher evaluation instrument.

• . . . teachers who were on leave during any portion(s) of the past 3 years?
• . . . teachers who were “employed” but did not work 120 days during a school year?
• . . . teachers who were evaluated on all 5 standards versus those career teachers only evaluated on only 2 standards?
• Does 2013-14 count when calculating the 3 consecutive years?






Teacher evaluation instruments only?
Must “show effectiveness” by at least
“Proficient” on evaluation (most recent?)
◦ “Proficient” on all standards?
◦ Higher ratings for better than “Proficient”?
◦ DO NOT consider Standard 6
Other criteria?
Performance evaluations for previous years?
Seniority?


4-Year Contract
◦ $500 annual pay raise for each year of the contract.
◦ $500 annual (cumulative) pay raise = $5,000 total over the next 4 years.

•
•
•
September 1, 2013 – June 30, 2014
4-year contract offers must be made and accepted no later than June 30, 2014.
4-year contract term:
• July 1, 2014 – June 30, 2018.
• At end of 4-year term, teacher receives 1, 2, or
4-year contract, if not nonrenewed.

•
•
The Superintendent shall recommend
25% of the eligible teachers to the BOE.
The BOE must review the teachers recommended by the Superintendent.
◦ BOE can accept each candidate OR choose an alternative.
◦ BUT total number of teachers offered 4-year contracts must equal 25% of teachers employed in the LEA for at least 3 consecutive years.

•
Any teacher who accepts a 4-year contract:
◦ Voluntarily relinquishes career status or any claim of career status.
◦ Becomes subject to new teacher employment provisions in 2014-15 instead of 2018-19.

(1)
(2)
Career status teachers: Who are not offered (or reject) 4-year contracts in June 2014 retain career status under the existing law until July 1, 2018.
Non-Career Status Teachers: Who are not offered
(or reject) 4-year contract in June 2014 are only eligible to receive 1-year contracts until July 1,
2018, and are subject to new teacher employment provisions in 2014-15.






Determining the 25% ( Fairly)
Many variations in Implementation
Across the State









“Opt out” forms.
Teacher evaluation instrument involves some subjectivity and there is a potential lack of inter-rater reliability.
Could be different pools, e.g., by school, non-classroom teachers.
Point system.
Hard-to-fill positions.
Lock in current probationary teachers.
Seniority/reverse seniority.
Recognize the impact of student demographics on test scores.
Need to avoid any action that appears “arbitrary” or
“capricious.”

Determining the 25% ( Fairly)
Many variations in Implementation
Across the State (cont.)



Board of Education need not accept Superintendent’s recommendations.
Board of Education clearly is under no obligation to pick the
“top 25%.”
Board of Education may consider any factors deemed important (so long not arbitrary, capricious, discriminatory, etc.)

Effect?

S.L. 2013-360 (S.B. 402), The Appropriations
Act, sec. 9.6.(e) provides:
SBE shall develop, by rule under the
Administrative Procedures Act, a model contract for use by local boards of education in awarding teacher contracts. SBE may adopt a temporary rule by “no later than January 1, 2014,” but shall replace the temporary rule with a permanent rule “as soon as practicable.”

SBE did not adopt the model contract until its meeting on February 6, 2014, and “temporary rule” has been rejected by the Rules Review Commission
(RRC) because it was after the deadline in the law.
SBE will now have to go through normal rule making process, which can take 18 months.
Meanwhile, LEAs may choose whether or not to use the “Model Employment Contract for Teachers”
(copy attached), with or without changes.



Preamble – lists the position the teacher shall hold, while section 4, “Duties,” states that the contract “creates no right to any particular assignment or school site.” Consider whether to keep the sentence in the preamble, or add to it so that it might say, “subject to section 4 below,…”
The model contract would be used for any teacher who does not retain career status after June 30, 2014. (I.e., teachers on a 1year contract or a 4-year contract under the
25% provision).






Term
Compensation
Qualifications
Duties
Extra or Special Duties – consider whether to include this in the contract. This provision states that special duties or assignments “will be described in a separate agreement” and the additional compensation will not be considered salary for the purposes of computing the
Teacher’s salary, and that any return to regular duties is not a demotion as defined by the new
“non-tenure law” (G.S. §§115C-325.1 et seq.).





Benefits
Termination of Contract by Teacher – will be under the provisions and procedures of new
G.S. §§115C-325.1 et seq.
Termination of Contract by Board – provides that the Board may alter the terms or terminate the contract pursuant to G.S.
§§115C-325.1 et seq.
Boilerplate Provisions – modification, severability, governing law.
50

Administrator Contract Renewal
Effective: July 1, 2014
What is unchanged from current law:
• Superintendent must give the school administrator notice of decision not to renew the administrator’s contract by May 1.
• School administrator not recommended for renewal has 10 days to file a written request for a hearing before the BOE.
• BOE shall conduct a hearing upon request.
• BOE shall notify the school administrator of its decision by June 1.

Administrator Contract Renewal
Effective: July 1, 2014 (cont.)
Changes from Current Law:
• Eliminates the requirement that the
Superintendent provide an administrator with reasons for nonrenewal.
• Question: If the school administrator has no right to receive the reason(s) for her nonrenewal, how does he/she know whether to request a hearing or what to prepare for a hearing?

Administrator Contract Renewal
Effective: July 1, 2014 (cont.)
Changes from Current Law (cont.):
• Eliminates judicial review of nonrenewal of contract decisions.
• Beginning July 1, 2014, a school administrator with career status as a teacher or administrator, or both, will lose any career status. I.e., nonrenewed administrator need not be given a teacher contract.

Dismissal or Demotion of
Administrators During the Contract
Term
• July 1, 2013 to June 30, 2014: No changes from existing administrator contract law, G.S. § 115C-
287.1. Administrators may be dismissed or demoted during the contract term under the existing tenure law (G.S. § 115C-325), and may be nonrenewed at the end of the contract term.
• Beginning July 1, 2014: Administrators may be dismissed or demoted during the contract term under the provisions of new G.S. § 115C-325.1 to -
325.14, and may be nonrenewed at the end of the contract term.

Dismissal or Demotion of Noncertified/Classified Employees:
Current law -- G.S. §115C-45(c):
• In 2001, N.C. Gen. Stat. § 115C-45(c) changed the status of these employees from “at-will” employees to a form of
“employees not quite at-will.”
• Right to appeal a “final administrative decision” to the BOE regarding the “terms or conditions of employment or employment status of a school employee.”
• Entitled upon request to written notice of reasons for dismissal, demotion, or suspension without pay—prior to any BOE hearing.
• Entitled to a BOE hearing.
• Entitled to judicial review in Superior Court of BOE decision to dismiss, demote or suspend without pay.

Dismissal or Demotion of Noncertified/Classified Employees (cont.):
•
•
Effective July 1, 2014:
Eliminates right to receive written notice of the reasons for demotion, dismissal, or suspension without pay.
Eliminates right to appeal to Superior
Court from BOE decision to dismiss, demote, or suspend without pay.

Richardson v. State of North
Carolina, Wake County Superior
Court No. 13-CVS-16484 (2014)
[2/28/14]

Holding: Wake County Superior Court grants preliminary injunction against implementation of 2013 voucher legislation called the “Opportunity
Scholarship Program.”

1.
2.
“Special Education Scholarship Grants” for special education students.
“Opportunity Scholarship Grants” for low-income students – implementation for 2014-15 blocked by preliminary injunction.







Originally enacted in 2011 as individual income tax credit, S.L. 2011-395.
Tax credit not to exceed $3,000 per semester.
Eligibility required child to have been either (i) enrolled in a public school or (ii) receiving special education or related services through the public schools as a preschool child, for the two preceding semesters.
Revised in 2013 as vouchers (“Special Education
Scholarship Grants”).
S.L. 2013-264; G.S. §§115C-112.2 et seq.
Scholarship grants are not more than $3,000 per semester per student.







Eligibility requires that student (i) was enrolled in a NC public school during the previous semester, (ii) received special education or related services through the NC Public
Schools as a preschool child, (iii) received a scholarship grant for the previous semester, or (iv) is eligible for initial enrollment in kindergarten or first grade.
Scholarship grants can be used at private church schools, qualified nonpublic schools, and home schools.
Scholarship grants shall be awarded only for reimbursement of tuition and special education and related services.
Administered by North Carolina State Education Assistance
Authority (NCSEAA).
$3 million appropriated for FY 2013-14 and $3 million appropriated for FY 2014-15 for scholarship grants.
There is funding available for approximately 850 students to receive scholarship grants for spring 2014.

•
•
•
•
•
Session Law 2013-306, Section 8.29, created the
Opportunity Scholarship Program (OSP).
$10 million appropriation to State Education Assistance
Authority, with corresponding reduction of $11.8 million from budget for public school system.
Scholarships of up to $4,200 per student for use at private schools.
Eligibility for 2014-15: household income level not in excess of amount required to qualify for free and reduced lunch.
Eligibility for subsequent years: household income not in excess of 133% of amount required for federal free and reduced-price lunch program.

•
•
•
•
Injunction issued February 28, 2014, by Wake County
Superior Court Judge Robert Hobgood.
Court found likelihood that plaintiffs would succeed on the merits and irreparable harm if an injunction were not issued.
Court found likelihood of success on claim that OSP legislation violated Article IX, Section 6, of the State
Constitution, which specifies that state assets and revenues
“for purpose of public education” “shall be faithfully appropriated and used exclusively for establishing and maintaining the uniform system of free public schools.”
(Emphasis supplied).
Preliminary injunction preserves the status quo pending a final determination on the merits.

1.
2.
3.
4.
Open Enrollment. Draft bill 2013-MKz-150 [v.6] (03/28)
◦ Intra-LEA open enrollment.
◦ Inter-LEA open enrollment, notwithstanding domicile.
Replace the Common Core. Draft bill 2013-TLza-24 [v.7]
(04-14).
◦ Creation of Academic Standards Review Commission, located administratively in the Department of Administration.
◦ Comprehensive review of academic standards for English
Language Arts and Mathematics, and recommend changes and assessments.
◦ State Board of Education shall not acquire or implement new assessment instrument without approval of the General Assembly.
County takeover or control of school facilities?
Other?

Union County Board of Education v.
Union County Board of Commissioners
2013-14 Budget Dispute
Jury Verdict and Judgment: additional funding above county appropriation
Current Expense: $4,973,134
Capital Outlay: $86,184,005

Rowan-Salisbury Board of Education and
Rowan County Board of Commissioners
Budget Dispute 2013-14
Settlement in Mediation (April 14, 2014):

$40.5 million additional capital outlay for 3 projects, over 3 years


Joint Planning Committee from both Boards to develop long-range Capital Improvement Plan
(CIP) for Rowan-Salisbury School System
Agreement on use of restricted sales tax for 6 years.





Uncertainty regarding application to charter schools of numerous laws affecting LEAs.
Charter school is “public school.”
But, charter school is operated by private nonprofit corporation, which is not a governmental body.
Open Meetings Law and Public Records Law generally apply to governmental bodies.





Charter schools agree to comply with Open
Meetings Law and Public Records Law as condition of receiving charter.
Personnel file statutes (§§115C-319-321) do not specifically apply to charter schools.
§115C-321 makes most personnel file information for LEA employees confidential and not a public record.
§115C-320 makes some personnel file information public, including salaries.




March 2014 – DPI spokesperson states:
“Charter school staff are not employed by a public school board but by a private nonprofit board and, as a result, their salaries are not subject to public records laws the way public school employees’ or state employees’ are.”
April 23, 2014 – DPI reverses course and states that charter school salary information is a public record.
Implications?

Charter Day School v. New Hanover
County Board of Education, 754
S.E.2d 229 (N.C.App. 2014)
[2/18/14]

Holding: North Carolina charter schools are entitled to a per-pupil share of the
LEA’s appropriated fund balance in the local current expense fund, but not a share of the entire fund balance.

1995 – NC Charter School Law enacted
◦ G.S. §115C-238.29H(b) – charter schools are entitled to equal per pupil share of the “local current expense appropriation to the local school administrative unit.”
◦ Widespread understanding (ruled incorrect in Francine
Delany case) was that charter school funding statute referred to the county local current expense appropriation to the LEA, and not other monies in local current expense fund.
2002 – Francine Delany New School for Children v.
Asheville City Board of Education
◦ Charter school is entitled to share of fines and forfeitures and supplemental school taxes, in addition to current expense appropriation from county.

Charter School Funding History (cont.)
2008/09 – Sugar Creek I and II cases
• Charter school is entitled to share of all monies in local current expense fund (“Fund 2”), even pre-K funds if placed in local current expense fund.
2009-10 – DPI authorizes Fund 8 for special programs; monies in Fund 8 not to be shared with charter schools because not part of local current expense fund.
2010 – Session Law 2010-31, section 7.17
• Effective 2010-11, charter school is not entitled to a share of Fund Balance or interest in local current expense fund.

Charter School Funding History (cont.)
2012 – Thomas Jefferson Classical Academy v.
Rutherford County Board of Education
• BOE has authority to transfer monies from local current expense fund to Fund 8 for the current fiscal year, but not retroactively for prior fiscal years.
2013 – Session Law 2013-355, Section 1(g)
• Charter school funding statute revised to give charter school a share of the “local current expense fund of the LEA” (not “local current expense appropriation to the LEA” as previously)
2014 – Charter Day School v. New Hanover Board of
Education
• Charter school is entitled to share of LEA’s appropriated fund balance in local current expense fund, but not a share of entire fund balance.

Revised Charter School Funding Statute
Session Law 2013-355; G.S. §115C-238.29H(b) and (c)

Effective 7/25/13


Charter school is entitled to equal per pupil share of local current expense fund of LEA.
Per pupil share shall be transferred to the charter school within 30 days of LEA’s receipt of monies into
 the local current expense fund.
Within the 30 day time period, LEA shall provide charter school the following information:
1.
The total amount of monies the LEA has in each fund, including public school fund, local current expense fund and local capital outlay fund.
2.
The student membership numbers used to calculate the per pupil share of the local current expense fund.
3.
How the per pupil share of the local current expense fund was calculated.

Revised Charter School Funding Statute
•
•
•
LEA and charter school may use mediation process with State Board of
Education to resolve differences on calculation and transfer of per pupil share.
Prior to commencing a lawsuit, complaining party shall give 15 days written notice of the alleged violation.
The court shall award prevailing party its attorney’s fees and costs.

OCR Resolution Agreement
Arcadia United School District
July 24, 2013


Complaint alleged that school district prohibited a transgender boy (biologically female) from accessing sex-specific facilities such as restrooms at school and at an overnight academic camp.
The boy had “consistently and uniformly presented as a boy at school and in all other aspects of his life for several years.”

OCR Resolution Agreement
Arcadia United School District
July 24, 2013
The Resolution Agreement obligates the school district to:
◦ Provide access to sex-specific facilities designated for male students at school and district-sponsored activities.
◦ Provide access to private facilities based on privacy and safety if requested by the student.
◦ Treat the student as other male students are treated.
◦ Ensure the student’s birth name and assigned sex are treated as confidential.
◦ Advise the student that he may request a “support team.”
◦ Develop a comprehensive gender-based nondiscrimination policy.
◦ Annually train all certified staff.
◦ Provide age-appropriate instruction to students about gender based discrimination, with examples of prohibited conduct.

Mathis v. Fountain-Ft. Carson School
District 8, Colorado Div. of Civil Rights,
[6/17/13]


Colorado Division of Civil Rights found that school discriminated against transgender elementary student, Coy, who is biologically male but identifies as female, by refusing to let
Coy use the girls’ bathroom.
According to Coy’s parents, refusal by school staff to accept Coy’s femininity caused significant disruption; as Coy became depressed, her learning ability was affected due to anxiety, and she did not want to leave the house unless she was dressed as a girl.

Mathis v. Fountain-Ft. Carson School
District 8, Colorado Div. of Civil Rights,
[6/17/13] (cont.)


The school at first agreed to treat Coy as a female in many ways. Students were simply told that Coy was now a girl, and she was eventually accepted that way.
Coy apparently used the girl’s restroom in kindergarten. However, before first grade started the school district made the decision that Coy was to use the boys’ restroom.
The Colorado Division of Civil Rights concluded that
Coy is a transgender girl and thus a member of protected classes based on her sex and sexual orientation. The school district’s denying Coy the ability to use the girls’ restroom was discrimination based on sex and sexual orientation.

Doe v. Regional School Unit 26, 86
A.3d 600 (Me. 2014) [1/30/14]
Holding: Fifth grade transgender female
(biologically male) is entitled to use girls’ restroom under Maine Human Rights Act.






Topic: Nondiscriminatory Administration of School
Discipline
African-American students without disabilities are more than 3 times as likely as white peers to be expelled or suspended.
While disparities may be caused by a range of factors, “research suggests that the substantial racial disparities … are not explained by more frequent or more serious misbehavior by students of color.”
“In short, racial discrimination in school discipline is a real problem.”
Dear Colleague letters indicate priority areas of enforcement for OCR.

Joyner v. Perquimans County Board of Education, 752 S.E.2d 517
(N.C.App. 2013) [12/17/13]
Holding: Board of Education’s decision to deny teacher Vanessa Joyner career status was arbitrary or capricious, as lacking a rational basis in the evidence.

Diamond v. Charlotte-Mecklenburg
Board of Education, 752 S.E.2d 256
(N.C.App. 2013) [10/1/13]
Holding: Teacher was properly dismissed after slapping a student for disruptive behavior during a bomb threat evacuation.

th
Holding: High school guidance counselor was validly dismissed for his lurid selfpublished book of adult relationship advice, based on the Pickering balancing test.

Fourth Amendment/Search and Seizure
Herrera v. Santa Fe Public Schools, 956
F.Supp.2d 1191 (D.N.M. 2013)
[6/28/13]
Holding: Requiring students to submit to suspicionless pat-down search as a condition for entrance to high school prom violates students’ Fourth Amendment rights.

Fourth Amendment/Search and Seizure
K.P. v. State of Florida, 129 So.3d 1121
(Fla.App. 3 Dist. 2013) [12/26/13]
Holding: School resource officer’s search of high school student’s book bag, based on anonymous tip that student was carrying a firearm, was reasonable.

Fourth Amendment/Search and Seizure
J.P. v. Millard Public Schools, 285 Neb.
890, 830 N.W.2d 453 (Neb. 2013)
[5/17/13]
Holding: School officials did not have authority to search student’s truck parked across the street from high school, although student took another student to the truck without permission during school hours.

Fourth Amendment/Search and Seizure
In re: G.M. v. State of Alabama, ___
So.3d ___, 2013 WL 4873080 (Ala.
2013) [9/13/13]
Holding: Search of high school student was unconstitutional because principal lacked reasonable suspicion of a “moderate chance” of finding evidence of wrongdoing based solely on association with another student.

Fourth Amendment/Search and Seizure
Hearring v. Sliwowski, 712 F.3d 275
(6 th Cir. 2013) [3/27/13]
Holding: School nurse is entitled to qualified immunity on student’s claim that visual search of genital area in course of medical examination violated the 4 th
Amendment’s reasonableness requirement.

Fourth Amendment/Search and Seizure
G.C. v. Owensboro Public Schools, 711
F.3d 623 (6 th Cir. 2013) [3/28/13]
Holding: School search of student’s cell phone text messages was not justified notwithstanding prior suicidal statements.

Wynar v. Douglas County School
District, 728 F.3d 1062 (9 th Cir. 2013)
[8/29/13]
Holding: Off-campus student speech about planned shooting at school supports suspension under both prongs of Tinker: disruption and invasion of rights of others.

Fruden v. Tilling, 742 F.3d 1199 (9 th
Cir. 2014) [2/14/14]
Holding: Student uniform policy which mandates wearing a shirt bearing the school’s motto is compelled speech to be evaluated under strict scrutiny.

Glowacki v. Howell Public School
District, 2013 WL 3148272 E.D. Mich.
(2013) [6/19/13]
Holding: High school teacher who removed a student from class for making religiousbased anti-gay comments during a classroom discussion about bullying violated the student’s First Amendment right to freedom of speech.

Dariano v. Morgan Hill Unified School
Dist., 7445 F.3d 354 (9 th Cir. 2014)
[2/27/14]
Holding: School district’s prohibition on students wearing the American flag on
Cinco de Mayo did not violate First
Amendment or Equal Protection Clause.

J.A. v. Ft. Wayne Community Schools,
2013 WL 4479229 (N.Ind. 2013)
[8/20/13]
Holding: School officials may prohibit students from wearing bracelets bearing the message “I ♥ Boobies: (Keep a
BREAST).”

B.H. ex rel. Hawk v. Easton Area
School District, 725 F.3d 293 (3 rd Cir.
2013) en banc [8/5/13]
Holding: Student bracelets bearing the message “I ♥ Boobies: (Keep a BREAST)” constitutes ambiguously lewd speech rather than plainly lewd speech, and expresses political or social commentary, thus cannot be the basis of school discipline under
Fraser.

Freshwater v. Mt. Vernon City School
Dist. Bd. Of Ed., 1 N.E.3d 335 (Ohio
2013) [11/19/13]
Holding: School district could not direct teacher to remove his personal Bible from his desk, but could require teacher to remove other religious materials in classroom.

A.M. v. Taconic Hills Central School
District, 510 Fed.Appx. 3 (2 nd Cir. 2013)
[1/30/13]
Holding: Middle school graduation program is governed by Hazelwood standard, and school could prohibit class president’s quotation from the Old Testament.

K.A. v. Pocono Mountain School
District, 710 F.3d 99 (3 rd Cir. 2013)
[3/12/13]
Holding: School district violated elementary student’s rights by prohibiting her from distributing invitations to her classmates for a Christmas party at her church.

Kok v. Tacoma School Dist. No. 10,
177 Wash.App. 1016 (Ct.App.Wash.
2013) [10/22/13]
Holding: School was not negligent by failing to foresee shooting of student by another student diagnosed with paranoid schizophrenia.

Hayden v. Greensburg Community
School Corp., 743 F.3d 569 (7 th Cir.
2014) [2/24/14]
Holding: High school policy requiring boys playing interscholastic basketball to keep their hair cut short violated Title IX and the
Equal Protection Clause.

Beattie v. Line Mountain School
District, ___ F.Supp.2d ___, 2014 WL
131637 (M.D.Pa. 2014) [ 1/13/14]
Holding: Middle school female student obtains temporary injunction allowing her to participate in all-male wrestling team, under Equal Protection Clause and
Pennsylvania State Constitution.

Hoke County Board of Education v.
State of North Carolina, 749 S.E.2d 451
(N.C. App. 2013) [11/8/13]
Holding: Lawsuit challenging 2011 legislation imposing limitations on NC prekindergarten program enrollment is declared moot based on superseding legislation; lower decisions by Court of
Appeals and Judge Manning are vacated.

Shelby County v. Holder, ___ U.S. ___,
133 S.Ct. 2612 (2013) [6/25/13]
Holding: Section 4 of the Voting Rights Act of 1965, which contained a coverage formula defining “covered jurisdictions” for which preclearance is required, is unconstitutional in light of dramatic changes in voting practices since the coverage formula was adopted.

Wind v. City of Gastonia, 38 S.E.2d 780
(N.C.App. 2013) [3/19/13]
Holding: City policeman was entitled to review portion of personnel file dealing with complaints against him that were determined to be unfounded, including the identity of the complainants.

Rhea v. District Board of Trustees of
Santa Fe College, 109 So.3d 851
(Ct.App.Fla. 2013) [3/13/13]
Holding: Student’s e-mail complaining about professor’s classroom behavior and teaching style is an education record of student protected from unredacted disclosure to professor.

Zeno v. Pine Plains Central School
District, 702 F.3d 655 (2 nd Cir. 2012)
[12/3/12]
Holding: $1 million jury verdict against school district for permitting harassment of bi-racial student is upheld, where school’s efforts were extensive but inadequate.

Bordonaro v. Johnston County Board of
Education, 938 F.Supp.2d 573 (E.D.N.C.
2013) [4/11/13]
Holding: Teaching assistant terminated due to her glaucoma-related inability to drive a school bus stated claims for disability discrimination and retaliation. Case was later settled for 2 years’ pay, approximately $50,000.