Fall 2008
Zukowski Law Offices has compiled an executive summary of important
case law for your review. We have included Illinois cases and
selected federal cases having impacts upon school board and
administrations. Please let us know if you would like to receive
complete copies of any of the following decisions for your further
review.
FOURTH AMENDMENT - CLASSROOM AUDIO RECORDING
Plock v. Board of Education of Freeport School District, 545 F. Supp. 2d 755(N.D. Ill. 2007)
Plaintiff special education teachers employed by the district filed suit against the district alleging Fourth Amendment violations for the district’s installation of audio/visual equipment in the classroom. The equipment was installed as a result of allegations of abuse taking place within the classrooms. The equipment was installed in an open and obvious manner in classrooms where “the most vulnerable children both physically and emotionally challenged, were assigned”. Plaintiff teachers focused their entire challenge against the audio component of the school district’s proposed audio/visual monitoring policy contending that: 1) any audio recording of the classroom would violate their Fourth Amendment right to be free from unreasonable searches and seizures; and 2) that the proposed audio recordings violate the Illinois Eavesdropping Act.
The Court found that teachers do not have a reasonable expectation of privacy in their communications in the classroom as such communications will virtually never be confined to the classroom but will be discussed with parents, other students, other teachers, and administrators. The Court went on to state that a classroom in a public school is not the private property of any teacher and that there is nothing private about communications which take place in such settings.
Holding: The proposed audio monitoring of a teacher’s classroom in light of allegations of abuse was not violative of the Fourth Amendment.
TORT LIABILITY – SCHOOL BUS
Green v. Carlinville Community Unit School District No. 1, No. 4-07-0297 (Ill. App. 4th Dist. 2008).
A student filed suit against the school district alleging a school bus driver employed by the district had sexually molested her. The student alleged several tort claims including intentional infliction of emotional distress, assault and battery, negligence per se, negligent hiring, and negligent supervision.
The Court found that school districts that operate school buses owe their students the highest degree of care to the same extent common carriers (public transportation) owe their passengers the highest degree of care. While acts of sexual assault are generally outside the scope of employment, the Court applied an exception to this general rule as a result of the high degree of care that schools owe students riding on school buses. The Court remanded the case to a lower court for a determination as to whether the school district could be immune as a public body under the Tort Immunity Act. Separately, the Court found that the school district is required to at least commence an investigation of employment applicants before it is vested with the discretionary authority to hire.
Holdings: (1) School districts owe the highest duty of care to children riding school buses; and (2) A school district’s failure to comply with the statutorily imposed criminal investigation requirements would eliminate any immunity the school might otherwise have enjoyed under the Tort Immunity Act for hiring its employees.
STUDENT PEER TO PEER SEXUAL HARASSMENT
Doe v. Brimfield Grade School, No. 07-CV-1205 (C. D. Dist. Ill. 2008).
The allegation that a grade school student was repeatedly struck in the testicles by other male students was sufficient to support a claim against the school under Title IX of the Education Amendments of 1972 (Patsy T. Mink Equal Opportunity in Education Act) for gender stereotyping. The school’s principal was aware of the ongoing practice of male students hitting each other in the testicles, also known as “sac stabbing”. As a result of the repeated trauma, the student suffered significant swelling and pain in his testicles. The student’s parents contacted the school repeatedly and were told that the student essentially needed to “toughen up and stop acting like a little girl” and to “stick up for himself”. The student eventually needed surgery on his testicles as a result of the scrotal trauma. Even after the surgery, the student was again struck and pinched in the testicles by other students, which caused the surgical incision to break open and the need for additional surgery.
Even after repeated discussions with the student’s parents, the school’s principal did nothing to investigate or remedy the situation. There was evidence that the student’s coach even reprimanded the student for complaining of the abuse. As a result of the school’s repeated refusal to take reasonable steps to protect the student, the parents removed him from the school and filed claims for sexual harassment and retaliation in violation of Title IX against the school.
A plaintiff must establish sexual harassment that is so severe and persuasive and objectively offensive and it so undermines and distracts from the victim’s educational experience, such that the victim students are effectively denied equal access to an institution’s educational resources and opportunities. Same sex claims are viable under Title IX so long as the plaintiff demonstrates that he or she would not have been treated in the same way had he or she been a member of the opposite sex.
Holding: A school district that does not investigate allegations of sexual harassment of a student and take subsequent steps to prevent the harassment violates that student’s civil rights when it is demonstrated that the harassment effectively denied equal access to an education.
FIRST AMENDMENT – STUDENT FREE SPEECH
Nuxoll v. Indian Prairie School District # 204, No. 08-1050(7TH Cir., 2008).
A high school student sought a preliminary injunction against his school district to preclude the school from preventing him from wearing a t-shirt bearing the slogan “Be Happy, Not Gay” in response to a “day of silence” intended to draw attention to the harassment of homosexuals. The court found that the student was likely to succeed on the merit of his preliminary injunction claim that the school would violate his First Amendment right by preventing him from wearing such a t-shirt. The court determined that there was an absence of evidence of irreparable harm would result from allowing the student to wear the t-shirt at school, as the slogan at issue was only tepidly negative and it was highly speculative to say that it would poison the educational environment.
Holding: In the absence of evidence showing imminent irreparable harm to the educational environment from speech, a school district may not inhibit such speech without impugning First Amendment rights.
FAMILY MEDICAL LEAVE ACT - RETALIATION
Lewis v. School District #70 No. 06-4435, (7th Cir, 2008).
A school bookkeeper filed suit against the District alleged that the school terminated her in retaliation for her taking leave under the Federal Family and Medical Leave Act (FMLA). The District Superintendent delivered to her a letter informing the bookkeeper that the District had decided to replace her stating “[y]ou miss too much work to meet the essential functions of your present assignment”. This letter was delivered during the cumulative 12 week leave period protected under the FMLA. There was no dispute as to whether the employee was entitled to take the leave to care for her ill mother. The bookkeeper introduced closed session board meeting minutes where board members announced their disapproval of the FMLA and the merits of the law. The court held that the evidence presented was sufficient for the matter to go to trial on the issue of whether the School District impermissibly retaliated against the employee for taking her protected FMLA leave.
Holding: A school district impermissibly retaliates against an employee
by taking adverse employment action against her for availing herself of
protected leave under the Family Medical Leave Act.
TEACHER DISMISSAL - REMEDIABILITY
Russell v. Board of Ed. of City of Chicago, 883 N E 2nd 9, 379 Ill. App. 3d 38 (Ill. App., 2007).
Plaintiff tenured teacher filed suit against the school district appealing the decision of a hearing officer finding that she engaged in conduct that was irremediable and upholding the Board of Education’s decision to terminate her employment without prior warning. The teacher had been suspended from her teaching duties on numerous occasions in prior years; however, her disciplinary record had subsequently been expunged by the Board of Education pursuant to a hearing officer’s order. After the expungement resolution had been passed by the Board of Education complying with the hearing officer’s order, the teacher refused to report to a psychological examination pursuant to the Board of Education’s request that she undergo the mental evaluation. Subsequently, the Board of Education initiated dismissal proceeds against the teacher without prior notice or warning and the hearing officer found that the teacher’s conduct was irremediable in light of the teacher’s previously expunged disciplinary infractions.
The hearing officer’s consideration of the prior disciplinary record of the teacher was improper as that record had been expunged previously. As a result the District should have followed dismissal procedures as if the teacher had no prior disciplinary record.
Holding: A school district may not consider an expunged disciplinary record in determining that a tenured teacher’s conduct is irremediable.
SPECIAL EDUCATION – ATTORNEY’S FEES
In re Dontrell H., No. 1-07-1368 (Ill. App. 2008).
The Chicago Board of Education appealed an order awarding attorneys fees rising out of a delinquency proceeding against a special education student charged with theft of property on the grounds of a public school. The Judge in the delinquency proceeding entered an Order finding the student guilty as to the offense and also ordered that the student remain in school and perform community service. Shortly thereafter the student’s parents retained an attorney to challenge the student’s current placement. After a mediation session, the parents and the school district agreed to place the student in a mutually-acceptable therapeutic day school, and the parents’ attorney filed a supplemental petition for attorney’s fees and costs in the Juvenile Court asking the Court to award fees and costs from the Board of Education because the student was not receiving an appropriate special education from the Chicago Public Schools in accordance with the Juvenile Court’s previous Order. The Juvenile Court awarded attorney’s fees and costs to the attorney and the school district appealed the Order on the basis that it was not made a party to the juvenile proceeding, and that the Juvenile Court lacked jurisdiction over the school district in that delinquency proceeding.
A Juvenile Court may award the student’s attorney’s fees and costs against a school district, even though the district was not a party to the legal proceeding, upon a finding that the school district willfully disregarded educational regulations or statutes regarding the child to his or her detriment and that the attorney’s fees are reasonable.
Holding: A school district is responsible for payment of a student’s attorney’s fees and costs in legal proceedings arising from the district’s willful disregard of the law.
SPECIAL EDUCATION – STAY PUT
D.P. v. School Board of
Broward County, Florida, 2008 WL114003(2008)
Autistic triplets who had been provided services pursuant to individualized family services plans (IFSP) filed suit arguing that the school district is required to provide services to the children pursuant to the IFSP until such time an individualized educational plan (IEP) was developed for the children. The parents withheld consent to the offered placement in a school for pre-kindergarten children with autism, which was a public school program The children, being three years old, had not previously been admitted to a public school program, and the only placement available under the stay put provision of the Individuals with Disabilities Education Act (IDEA) was a public school program.
Holding: Where a child otherwise eligible for special education has not previously enrolled in public school, a public school placement is considered the stay put placement during the pendency of due process.
Copyright © 2008 Zukowski Law Offices
While the information herein contained is considered accurate, it is not legal advice and should not be construed as such. Please seek a legal opinion from a qualified attorney based upon the facts of your specific matter.