Hansberger & Klein Newsletter – August 2016 Edition

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ACLU Releases List of “Illegal” Charter Enrollment Practices

The ACLU recently released a report titled “ How Some California Charter Schools Illegally Restrict Enrollment.” We have been working with the ACLU regarding some misconceptions and errors that have unfairly targeted some schools, and we urge you to review the list to see if your school appears on it.

You can also find more information here.

The California Charter Schools Association has produced a very helpful resourceregarding the report and a response as well.

Supreme Court Grants Stay to a Virginia School District that Denied a Transgender Student’s Use of an Opposite Sex Bathroom

On August 3, 2016, the U.S. Supreme Court granted a stay sought by a Virginia school district so that the district will not have to allow a transgender student to use the restroom of his choice when school opens in September 2016. Perhaps not surprisingly, Justice Roberts vote to grant the stay was joined by Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. Somewhat surprisingly, Justice Stephen G. Breyer also voted to grant the stay and issued a short concurring statement that he was voting for the stay “as a courtesy.” What does that mean? Your guess is as good as ours. Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan said they would deny the stay application.

The school district asked the Court to stay both a U.S. 4th Circuit Court of Appeals ruling in favor of a 17-year-old student who was born female but identifies as male to use a male-designated bathroom and a June 23 order issued by a federal trial court—issued after the 4th Circuit’s decision—that requires the district to allow the student to use the restroom of his choice beginning with the new school year.

The high court’s order will be in force pending the Supreme Court’s disposition of the school district’s regular appeal of the 4th Circuit decision, and that appeal is scheduled to be filed by late August 2016 (the high court likely wouldn’t act on it for at least two months after that).

Appeals Court Rules in Separate Strip- Search, Prom Breath-Test Cases

Fourth Amendment issues concerning searches of students are a frequent area of

litigation, and the 11th Circuit appeals court, in separate rulings made by separate panels, has shaped the landscape of the Fourth Amendment and student searches a bit further.

Strip Searches of Students

In the first case, a court denied immunity for a school administrator in the strip search of a student to look for drugs. In the second case, a court upheld the use of portable blood-alcohol tests for students entering a high school prom.

The first case involved an administrator who strip-searched a student to look for marijuana. A three-judge panel ruled unanimously on July 29 that the assistant principal faces potential personal liability for allegedly requiring a 7th grader to remove his underwear in a search for marijuana. The panel ordered the case to trial given there is a factual dispute about what the administrator actually stated. During a search of another student who pulled a bag of marijuana from his underpants, school administrators and the school resource officer required the other suspected students to remove their pants and pull the waistband out of their underwear for a visual inspection. The student at issue in this case was then summoned to the school office and a male assistant principal asked him to remove his shoes, empty his pockets, and take off his pants, all in front of other school officials and the other suspected students.

The student alleged that the administrator made him lower his underpants down to his ankles. The administrator testified, however, that he only asked the student to pull out the waistband of his underpants, but the court was required to credit the student’s account since the administrators were seeking immunity.

No marijuana was found on the student, and subsequently his mother sued the administrators, the SRO, the school district, and others, alleging the strip search violated her son’s rights.

Interestingly, the panel found that requiring students to pull out their waistbands was reasonable, but that the strip search was not. As the case heads to trial, we’ll keep readers updated as to the outcome.

Prom Breath Tests

When a group of students rode a bus to attend a 2014 Prom for Jensen Beach High School in Martin County, Fla., they arrived later than planned at 10:15 p.m. School officials could have kept them out for arriving after 10 p.m., but instead they decided to search the bus. The students had signed “zero tolerance forms” acknowledging that no drugs or alcohol was permitted at the prom, and that they may be subject to a breath test.

The bus search turned up an empty champagne bottle and some party cups, so school officials decided to conduct Breathalyzer tests of all 40 students on the bus. The tests took a while, and even when students passed, they were not allowed into the prom until the whole group was tested. Some who said they would rather just go home, before or after they were tested, were told they could not leave.

By the time the testing was completed, it was near midnight, and the prom was over. Every student in the group registered a 0.0 blood-alcohol content level.

In their decision in Ziegler v. Martin County School District, the 11th Circuit court upheld the breath tests of the students but held that the “continued detention” of all the students until all in the group had been tested was unreasonable. The Court wrote: “We now hold, when government officials need to conduct breathalyzer or urine tests on students, the testing must be accomplished in a reasonably expeditious time period. Once exonerated by the test, the student must be free to go.”

The Court agreed that the school officials should be granted immunity, so it ultimately upheld a district court ruling that granted summary judgment in favor of the school district. In the future, however, schools would be well advised not to detain students exonerated by such tests.

Clarifying Payroll Requirements for Charter Schools

We are often asked whether charter school employees – be they certificated or classified – can be paid only once a month. This question arises because in California, wages generally must be paid at least twice during each calendar month on the days designated in advance as regular paydays. The employer must establish a regular payday and is required to post a notice that shows the day, time and location of payment. Generally speaking, wages earned between the 1st and 15th days of any calendar month must be paid no later than the 26th day of the month during which the labor was performed, and wages earned between the 16th and last day of the month must be paid by the 10th day of the following month (alternate payroll periods will require payment within seven calendar days of the end of the payroll period within which the wages were earned. (See Labor Code Section 204 and Section 207).

For certificated staff, however, Labor Code section 204 allows payment of wages once a month on or before the 26th day of the month during which the labor was performed if the entire month’s salary, including the unearned portion between the date of payment and the last day of the month, is paid at that time. Certificated employees may be paid more frequently, but most of our clients follow the once-a- month payment schedule.

But what about classified staff? There are two Ed. Code sections that do allow classified staff, under certain circumstances, to be paid once monthly. Ed. Code section 45166, for example, allows the payment of wages on a monthly basis, as long as the school district is not paying classified staff pursuant to Ed. Code sections 42644, 42645, or 42646 and the district has adopted the merit system identified in Ed. Code section 45240 et seq. In these cases, the payment must be made no later than the last working day of the month in which the employee was in paid status. For districts following Ed. Code sections 42644, 42645 or 42646 must pay employees twice during each month on days designated in advance by the governing board of the district.

Where does that leave charter schools? Courts have trended toward finding that charter schools are as much non-profit corporations as they are public schools. Our suggestion is to avoid a labor code complaint and pay classified staff twice monthly pursuant to Labor Code sections 204 and 207. Given that the Ed. Code sections cited above do not apply to charter schools due to the mega-waiver, it seems risky to presume that a charter school would automatically qualify for the once-a-month payroll requirements of Ed. Code section 45166.

Teacher Immunity Granted in Suit Over Search of Student’s Facebook Account

In 2007, the cheerleading squad of Pearl High School in Mississippi traveled to a local TV station by bus. On the ride home, a freshman cheerleader and the captain of the squad apparently exchanged some heated words. The next day, the teacher who was the cheer squad sponsor was told that the freshman student had cursed and threatened the captain on the bus ride, and the teacher later discovered that the freshman student had moved the feud to her Facebook page. The teacher spoke to all the cheerleaders about the dangers of communicating on Facebook, and she demanded that all provide their usernames and passwords so she could inspect their accounts. The students apparently gave the teacher their usernames and password, and the teacher discovered that the freshman had messaged the captain with statements such as, “i am so sick of you bossing me around,” and “if i have a problem with you . . . i will confront you about it and im not gonna be nice about it.”

The teacher considered these and other statements to be offensive and threatening, and she suspended the freshman from the cheer squad for two weeks.

The student sued (of course!) and a three-judge panel of the U.S. Court of Appeals for the 5th Circuit granted the teacher qualified immunity because it was not clearly established that such a search would violate the student’s rights.

“We conclude that school officials acting in 2007 did not have fair warning that they could not, consistent with the Fourth Amendment, access a student’s social- networking account upon receiving information that the student had sent threatening online messages to another student, where those remarks concerned school activities and where the quarrel began at a school-related function,” the appeals court said in a unanimous opinion.

Fair warning then! Do not demand access to a student’s Facebook account, as it is unlikely qualified immunity would be granted now.

ESSA and Charter School Authorizers

If you are not familiar with the National Association of Charter School Authorizers, you should be. They provide many informative resources that are beneficial for charter school operators to know and understand. Recently, NACSA has provided numerous helpful resources regarding the Every Student Succeeds Act (“ESSA”) and charter school authorization. For more information, visit their site.

Some important highlights about ESSA and charter school authorization are summarized below:

  • Schools performing in the bottom 10 percent according to the state measure of school quality will need to be identified and action taken to improve performance.
  • ESSA promises more local control and accountability by allowing States to revisit their existing content standards and student achievement goals during ESSA implementation
  • While States must provide assurances that their standards align with college and career skills, ESSA prohibits any U.S. Secretary of Education from requiring states to adopt specific standards, assessments, teacher evaluation methods, or other key policies
  • And, perhaps most important, ESSA eliminates the NCLB 100% proficiency goal and allows States to set their own long-term and interim performance goals for all students and for each subgroup of students, which are subject to some federal approval.
  • ESSA does include a number of new reporting requirements, including:
  • English Learner student achievement of English proficiency
  • SEA and LEA data on school quality measures (includes student discipline, absenteeism, violence, bullying)
  • SEA and LEA data on number and percentage of students enrolled in advanced course work
  • SEA and LEA data on number and percentage of students enrolled in pre-K
  • Per pupil expenditures at State, LEA, and school level, disaggregated by source of funds
  • Post-secondary enrollment rates for year immediately following graduation (if available)Perhaps most significantly, for States that have been awarded a State charter school program grant, there are significant new benefits for charter school operators, including expanded eligibility (in addition to SEAs, a Governor, State Charter School Board, and CSOs are also eligible), a minimum of three state grants per year and a State must use not less than 7% of funds for statewide improvement, including authorizer quality initiatives.

How will charter school authorizing be impacted? At the State level, the changes could be significant enough to require significant changes to the Charter Schools Act and implementing regulations in the coming years. The changes coming down the pike include:

  • Charter school performance data will be different starting as early as the 2017–18 academic year in some States (including new state standards, new state assessments, new state report card and accountability systems) and authorizers will need to revisit and, potentially, modify performance frameworks and charter petition requirements to adapt.
  • Charter schools will have to meet new and altered federal requirements for items like Title I compliance, teacher quality initiatives, English Learners, financial monitoring, and special education and authorizers will need to adapt state and federal compliance monitoring accordingly.
  • Because Independent Chartering Boards, Governors, or Charter Support Organizations may be administrators of a CSP grant, States will need to fulfill program assurances and application requirements related to:
    • Charter school renewal standards
    • Charter school enrollment and recruitment practices
    • Meeting the needs of all students, including English Learners and students with disabilities
    • Charter school fiscal oversight, specifically audits
    • Assessing annual performance data
    • Holding charter schools accountable through highstakes decisions
    • Supporting authorizer quality initiatives
    • Conducting authorizer oversight
    • Helping parents make informed decisions

Judge Rejects Administrators’ Search of Student’s Cellphone

It seems that student searches are all the rage at the moment!

In a case of recent impression apparently impacted by the Supreme Court’s June 25 decision in Riley v. California, a Virginia federal district judge has thrown out the search of a Virginia student’s cellphone by school administrators looking for evidence of illegal drugs. While the judge upheld a pat-down search of the student and an examination of his pockets, shoes, and backpack, the judge said the search of the student’s cellphone “exceeded the scope of a reasonable search initiated to find drugs” because “the cellphone could not have contained drugs.” It’s a fairly logical conclusion when you consider it.

As with many search cases involving drugs, this case started with reports from two parents that they had witnessed a “long-haired student” smoking marijuana on a school bus. The school found no evidence of drugs and the student’s parents sued the school district and two administrators alleging the searches violated the 4th Amendment. While the initial search of the student was justified by the parent reports, even with the vague description proffered by the witnesses, the search of the cellphone was not.

Teacher’s Discrimination Claim Finds New Footing

Claims of discrimination based on a protected category are rarely won with a “smoking gun.” Most cases proceed on a theory of indirect evidence that, cumulatively, tends to prove discriminatory motives.

In New York, the 2nd Circuit US Court of Appeals unanimously ruled to allow most of a teacher’s discrimination claim to go to trial, overruling a district court’s dismissal of the case.

Carlos Vega is a high school mathematics teacher, of Puerto Rican heritage and fluent in English and Spanish. His lawsuit contended that, beginning in 2008, after many years of good performance reviews and nine years after he received tenure, administrators assigned him an increased proportion of students who spoke only Spanish, forcing him to do “twice as much work” to prepare for and teach his classes.

He also contends that he was assigned a classroom with a “University of Puerto Rico” banner displayed above the door. And he says the district twice tried to transfer him to other schools, including one with a Hispanic principal.

Vega filed a discrimination complaint with the federal Equal Employment Opportunity Commission in 2011, and he claims the district then retaliated against him by assigning him classes in which as many as 75 percent of the students were excessively absent, which could reflect poorly on his job performance.

The Court of Appeals wrote: “We conclude that Vega pleaded a plausible discrimination claim … based on his allegation that the district assigned him classes with higher numbers of Spanish‐speaking students and, in doing so, assigned him a disproportionate workload.” Significantly, while the court found that the other allegations did not plausibly state a discrimination claim on their own, taken together with the other allegations, including the claims of retaliation, they were “plausibly connected to Vegaʹs Hispanic background and therefore provide[d] a contextual basis for inferring discrimination.”

Vega’s case will now head to trial in a case we will watch closely.

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