PK Law Education and Employment Law Alert

February 2012

DEAR FRIENDS:

The purpose of this alert is to highlight some recent significant employment legislative developments and decisions of the Supreme Court of the United States as well as Maryland state and federal courts, several in which PK Law has successfully defended its employer clients.

THIRD TIME ISN’T A CHARM FOR TEACHER IN RACE DISCRIMINATION SUIT

For Howard County teacher alleging race discrimination against her employer, the third time wasn’t a charm. The teacher had filed three actions against the Board of Education of Howard County and Howard County’s Superintendent of Schools alleging employment discrimination and retaliation.

Pessin Katz Law’s Education Group was not involved in the first action which resulted in a jury verdict for the Plaintiff teacher. In the second suit that was brought in federal court based on alleged subsequent acts of discrimination and retaliation, PK Law obtained summary judgment on all claims. In the third action, which followed the Plaintiff’s termination for misconduct and incompetence, she again alleged discrimination and retaliation against the superintendent and the Board of Education. PK Law Education Attorney Lisa Y. Settles argued successfully to the court that most of the Plaintiff’s claims in the third action were barred by res judicata  since they should have been asserted in the second case and that her remaining constitutional and tort claims failed as a matter of law.

PK Law’S EDUCATION ATTORNEYS SUCCESSFULLY DEFEND EMPLOYER BOARD OF EDUCATION

The United States Court of Appeals for the Fourth Circuit recently affirmed Judge Chasanow’s dismissal of an employment discrimination case brought against the Board of Education of Calvert County. The race discrimination case was brought in the Circuit Court for Calvert County on March 25, 2011 under both Title VII of the Civil Rights Act of 1964 and Title 20 of the State Government Article (Maryland’s equivalent of Title VII) as well as state law tort theories.

Pessin Katz Law’s Education Group represented the employer board of education and upon undertaking the defense of the case, removed it to federal court and filed a Motion to Dismiss. The Motion to Dismiss was granted, and shortly after that decision, an appeal was taken to the Fourth Circuit. On February 26th, the Fourth Circuit adopted Judge Chasanow’s decision, without argument per curiam.

MASSACHUSETTS COURT SENDS STRONG ANTI-HAZING MESSAGE TO STUDENT ATHLETES

A Massachusetts superior court judge recently refused to overturn suspensions and expulsions of seven student-athletes at Andover High School who were involved in a hazing incident at Hoop Mountain Basketball Camp held at Stonehill College in 2011.The victims – so-called “newcomers” to the basketball program – were forced to engage in humiliating sexual tasks and endure severe beatings at the hands of more senior members of the program. One of the team captains taped some of the hazing incidents with a Smartphone.

Two of the suspended students, claiming to be bystanders to the hazing, filed suit against the school system, seeking to have their suspensions overturned.The two students alleged that the hazing occurred before they started high school classes at Andover High School, that they were unaware of their obligation to report the hazing incidents to school authorities, and that they were threatened on Facebook and by text to ensure their silence.

The Court was not sympathetic to the students’ excuse. Although the incident occurred during non-instructional time and off of school property, the Court found that there existed enough of a nexus between the conduct at the camp and the Andover High School basketball program at the school to uphold the suspensions and expulsions.The incidents violated both the school hazing policy and the Massachusetts anti-hazing law, which carries a penalty of $3,000.00 and/or a year in jail for perpetrators, and a $1,000.00 fine for witnesses.Maryland law also criminalizes hazing; perpetrators may be imprisoned for six months and may face a $500.00 fine.

SUPREME COURT DECLINES TO HEAR THREE STUDENT INTERNET SPEECH CASES

The United States Supreme Court recently declined to hear three students internet speech cases. J.S. v. Blue Mountain School District (which was combined with Layshock v. Hermitage School District and Kowalski v. Berkeley County Schools), the Supreme Court denied and therefore declined an opportunity to refine the “substantial disruption” standard that was set forth in Tinker v. Des Moins Independent Community School District, the seminal Supreme Court case against which all student speech cases are compared.

In both J.S. v. Blue Mountain School District Layshock v. Hermitage School District, students were punished by their respective school systems for creating offensive MySpace parodies of their school principals. Both students created the parody profiles during non-instructional hours and on personal equipment. In both cases, the Third Circuit determined that the creation of the fake profiles would not reasonably cause a disruption in the schools. The Third Circuit, therefore, determined that the suspensions did not survive constitutional muster.

In Kowalski v. Berkeley County Schools, a student created a MySpace page and encouraged other students to post offensive comments about a fellow student. 
The Fourth Circuit determined in Kowalski that such conduct could reasonably cause a disruption to the work and discipline of the school, and that the school system had a legitimate pedagogical reason for punishing the student that created the site.  The effect of the Supreme Court’s refusal to hear the aforementioned cases is that it is now even less clear when school systems can discipline students for off-campus internet conduct. 

A DELICATE BALANCE:  THE CONSTITUTIONALITY OF RACIAL BALANCING IN PUBLIC EMPLOYMENT

The idea of creating a public workforce that reflects Maryland’s racial diversity is an admirable one, but is intentional racial balancing a constitutional way of accomplishing it?  Recent Supreme Court jurisprudence in the area of public education indicates that it is not.

In two of the most famous and important legal opinions of the past century, the Supreme Court in Brown v. Board of Education I and II declared that de jure segregation of public schools on the basis of race violated the Equal Protection Clause of the Fourteenth
Amendment, and that desegregation was to proceed “with all deliberate speed.”  Discouraged by a lack of progress, the Supreme Court issued opinions in 1968 (Green v. County Sch. Bd. of New Kent County) and 1971 (United States v. Montgomery County Board of Education) which required school systems formerly segregated by law to take
affirmative action to desegregate, and which affirmed the use of fixed mathematical racial formulas as a means of doing so.

Here in Maryland, although the Fourth Circuit noted as early as 1958 that Maryland’s public schools were generally desegregating “with more than deliberate speed,” the Maryland State Board of Education promulgated a regulation in 1971—still on the books in Maryland—which requires local boards of education to “develop and implement plans and
procedures” to attain “racial balance at the various levels” of their respective school systems reflective of the racial composition of their respective jurisdictions.  A little more
than a decade later, however, the Supreme Court in Wygant v. Jackson Board of Education rejected a race-conscious layoff plan that favored African-Americans based on a finding that the percentage of minority teachers was less than the percentage of minority
students.  Notably, the Court held that the use of quotas was not sufficiently narrowly tailored because other, less intrusive means of accomplishing the goal of racial diversity—such as the adoption of hiring goals—were available. 

Several years later, in Freeman v. Pitts, the Court reinforced its position, stating that “[r]acial balance is not to be achieved for its own sake,” but only “to be pursued when racial imbalance has been caused by a constitutional violation.”  The Court explained that
“[o]nce the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors.”  The Court further stated that “[a]s the de jure violation becomes more remote in time and these demographic changes intervene, it becomes less likely that a current racial imbalance in a school district is a vestige of the prior de jure system,” and that “[t]he causal link between current conditions and the prior violation is even more attenuated
if the school district has demonstrated its good faith.”

More recently still, the Court in Parents Involved in Community Schools v. Seattle School District No. 1 further reinforced the unconstitutionality of racial balancing absent recent and relevant constitutional violations when it rejected school policies which classified students by race for purposes of making school assignment decisions.  In so doing, the Court opined that [a]ccepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that at the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.  Allowing racial
balancing as a compelling end in itself would effectively assure that race will always be relevant in American life, and that the ultimate goal of eliminating entirely from governmental decision making such irrelevant factors as a human being’s race will never be achieved.  An interest linked to nothing other than proportional representation of various races would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the program continues to reflect that mixture.

The Court concluded its analysis by stating that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Applying this analysis to public sector employment in general, racial balancing by any public entity is likely to be held unconstitutional unless it is narrowly tailored to remedy prior de jure racial discrimination.  Even so, the Supreme Court has made clear that the public entity bears the burden of proof—a burden all the more challenging considering the increasing remoteness of de jure violations to the present day.  Entities interested in promoting a workforce with a racial composition representative of their respective jurisdictions should instead focus on less intrusive means of accomplishing that goal, such
as the adoption of recruitment goals and the dedication of resources to ensure those recruiting goals are met.

UPCOMING EVENTS:

43rd Annual Conference of the North American Association of Educational Negotiators

Bargaining Alternative Pay Innovations: Choosing Expertise Over Ideology

Speaker: PK Law attorney Edmund J. O’Meally
Clearwater Beach, Florida
March 11 – 14, 2012

Re-engineering teacher salary schedules to incorporate performance pay, effectiveness performance levels, incentives for shortage areas to replace traditional experience/educational attainment matrixes can be complicated and intense. Learn from the experience of someone who has trod this path–and succeeded!

ELA Spring 2012 Regional Meeting at George Washington University

Education Law Association’s Spring 2012 Regional Meeting at George Washington University

March 24, 2012

Leslie R. Stellman, Esquire will be speaking on Copywrite Issues in Schools:

  • Knowledge of copyright and other intellectual property is necessary to prevent educators from violating the law! When may you use limited copyrighted material and open educational resources? In addition, this session includes a discussion of current sample policies regarding online course development as well as content and delivery methods for both K-12 and higher education application. This presentation discusses various aspects of intellectual property protection and ownership.

Edmund J. O’Meally, Esquire will be speaking on Liability Issues in Higher Education:

  • In addition to what has been presented and discussed in the earlier sessions, higher education shows recent legal trends of liability of employees and school officials. Discussion includes what bullying, hazing, and other harassment legislation and court cases mean in terms of liability. This session explores these areas and encourages discussion of varying facts and potential outcomes.

Program beings at 8am.

http://educationlaw.org/regional_meeting.php

National Education Finance Conference

Negotiating and Financing a Performance Based Pay Model for Public School Employee Bargaining Groups: The Baltimore City Experience.

Speaker: HPK Attorney Edmund J. O’Meally
May 2-4, 2012
San Antonio, Texas

Mr. O’Meally will lead a lively discussion on negotiating an overhaul of employee compensation scales by eliminating seniority based steps and replacing them with a performance based model for both professional and classified employee bargaining groups. This presentation is relevant to any school system or educational leader that is interested in enhancing student achievement and school improvement by rewarding teachers and other school employees for achievement, proficiency, leadership, and effort rather than maintaining the outdated industrial model that rewards seniority and mediocrity at the expense of students.

Inquiries should be directed to PK Law’s Labor/Employment and Education Law Group.

Tel: (410) 339-6746