The Year in Review: A  Legal Advocacy Update   Tiffany Chen

 The Year in Review: A Legal Advocacy Update
Tiffany Chen
NSBA Legal Intern
Alexandria, Virginia
Nicole Vitale NSBA Legal Intern
Alexandria, Virginia
April 8 ‐ 10, 2010 Hyatt Regency McCormick Place, Chicago, Illinois Abstract: To say school districts were in the spotlight during the U.S. Supreme Court’s 2008‐2009 term would be an understatement. Normally, the annual Supreme Court Update includes summaries of all case possibly relevant to school districts. This year, due to the plethora of potentially relevant cases, only the cases most relevant to school districts are reviewed in this article. The Year in Review: A Legal Advocacy Update THE YEAR IN REVIEW: A LEGAL ADVOCACY UPDATE Tiffany Chen & Nicole Vitale NSBA Legal Interns Alexandria, Virginia To say school districts were in the spotlight during the U.S. Supreme Court’s 2008‐2009 term would be an understatement. The Court heard five cases directly involving school districts on a wide‐range of issues from the constitutionality of a strip search to an interpretation of Title VII’s opposition clause. The limelight was stolen from school districts in only one instance: Supreme Court Justice nominee Sonia Sotomayor participated in the Second Circuit’s one paragraph decision in Ricci v. DeStefano, which the Court overturned on the last day of its term. At this point, the 2009‐2010 Supreme Court terms has not shaped up to be nearly as exciting for school districts. However, the Court has granted certiorari in a case in which NSBA has filed an amicus curie brief. The question in Kenny A. v. Perdue is whether attorney’s fees may be enhanced under federal fee‐shifting statutes for quality of performance and results obtained. Normally, the annual Supreme Court Update includes summaries of all case possibly relevant to school districts. This year, due to the plethora of potentially relevant cases, only the cases most relevant to school districts are reviewed in this article. 2008‐2009 Cases Directly Involving School Districts School District Strip Search Unconstitutional In Safford v. Redding 1 the Court ruled 8‐1 that a strip search of a student violated the Fourth Amendment because “there were no reasons to suspect the drugs [school officials were searching for] presented a danger or were concealed in [the student’s] underwear.”[2] 2 The Court also held that the district officials involved in the search were entitled to qualified immunity because the student’s right to be free from the search was not clearly established. A middle school student gave Safford Middle School Principal Kerry Wilson a white pill that he said a student named Marissa Glines had given him. He said others students were planning on taking the pills at lunch. Wilson learned from the school nurse the pill was prescription Ibuprofen 400 mg. School district policy prohibited the possession and use of prescription and over‐the‐counter drugs without permission. After finding various contraband items in a day planner within Marissa’s reach, Wilson asked Marissa to empty her pockets and open her wallet. Marissa produced several pills, including a 200 mg over‐the‐
1 129 S.Ct. 2633 (2009).
2 129 S.Ct. at 2637.
Copyright 2010 © National School Boards Association. All Rights Reserved. 1 The Year in Review: A Legal Advocacy Update counter anti‐inflammatory drug, which she claimed came from Savana Redding. Wilson then questioned Savana who denied knowledge of the contraband but admitted that she had lent the planner to Marissa. Wilson next searched Savana’s belongings and found nothing. At Wilson’s direction, Savana had to remove her outer clothing and “pull out” her bra and the elastic band of her underpants in the presence of a female school nurse and female administrative assistant. No pills were found. Savanna’s mother filed suit, claiming the strip search violated Savana’s Fourth Amendment rights. Justice Souter’s majority opinion first addressed the constitutionality of the search. The Court reiterated that under New Jersey v. T.L.O., 3 school officials may only conduct searches if they have reasonable suspicion and “the measures adopted are reasonably related to the object of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” 4 According to the Court, in light of the established friendship and reputation of the Marissa and Savana, Marissa’s accusation that the pills came from Savana was sufficient to justify the search of Savana’s backpack and outer clothing. However , the final steps, which the majority characterized as a “strip search,” invaded Savana’s privacy in such a manner as to be treated as “categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings.” 5 Here, the Court reasoned, the search violated the Fourth Amendment because “what was missing from the suspected facts that pointed to Savana was any indication of the danger to the student from the power of the drugs or their quantity and any reason to support that Savanna was carrying the pills in her underwear.” 6 Finally, the Court concluded that the school officials were shielded from liability by qualified immunity. Since the lower courts had reached a variety of conclusions about how T.L.O.’s standard for limiting the intrusiveness of a search in schools applies to strip searches, the law was not clearly established. Safford does not categorically prevent school districts from performing strip searches and provides some guidance as to when they can be performed. School districts considering performing a strip search for drugs will have to assess the dangerousness of the suspected drugs and whether there is any reason to suspect the drugs are being hidden in the student’s underwear. Unfortunately, as Justice Thomas points out in his dissent, the majority does not give much guidance as to how a district should determine the dangerousness of particular drugs. This lack of clarity may discourage school officials from engaging in strip searches involving drugs for fear of potential litigation for incorrectly gauging the drug’s “dangerousness.” 3 469 U.S. 325 (1985).
4 469 U.S. at 341.
5 Safford, 129 S.Ct. at 2641.
6 129 S.Ct. at 2642-43.
Copyright 2010 © National School Boards Association. All Rights Reserved. 2 The Year in Review: A Legal Advocacy Update Tuition Reimbursement Possible if is FAPE Denied In Forest Grove School District v. T.A., 7 the Court held 6‐3 that the Individuals with Disabilities Education Act (IDEA) authorizes reimbursement for the cost of private special education services unilaterally chosen by the disabled child’s parents when a public school fails to provide a “free and appropriate public education” (FAPE), regardless of whether the child previously had received special education from the public school. When T.A. was a freshman he was evaluated by a school psychologist who determined that he did not need to be tested further for learning disabilities and that he did not qualify for special education services. T.A.’s parents did not seek review of this decision. In his junior year, after a private professional diagnosed T.A. with attention deficient hyperactivity disorder (ADHD) and other memory and learning‐related disabilities, his parents enrolled him in a private school and notified the school district. The district evaluated T.A. again and determined that he was not disabled under the IDEA because his ADHD did not adversely affect his educational experience in a significant manner. A hearing officer disagreed with the school district’s evaluation, concluded the district failed to offer T.A. a FAPE, and ordered the district to pay for T.A.’s private‐school tuition. The Ninth Circuit reversed the district court’s conclusion that the 1997 Amendments to the IDEA bar reimbursement of private‐school tuition for students who have not previously received special education services from the public school. In concluding that IDEA allows reimbursement for private placements when a student who has never received special education from the public school has not been provided a FAPE, Justice Stevens, writing for the majority, relied on School Committee of Burlington v. Department of Education of Massachusetts 8 and Florence County School District Four v. Carter. 9 In those cases, the Court held that IDEA authorizes tuition reimbursement for private placements when the school district fails to propose an adequate individualized education program (IEP). According to the Court, the reasoning of Burlington and Carter applies in this case since “a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP.” 10 The Court then concluded that IDEA’s 1997 Amendments did not alter the Court’s reasoning in Burlington. Section 1412(a)(10)(C)(ii) states that school districts may be required to provide parents tuition reimbursement where the school district has not provided a FAPE and the student has previously received special education services from the district. While the school district argued this section makes it a requirement for a student to have first received special education from the district to receive tuition reimbursement, according to the Court, the “may require” language does not “foreclose reimbursement in other circumstances.” Likewise, the Court cited a policy reason for allowing reimbursement where no FAPE 7 129 S.Ct. 2484 (2009).
8 471 U.S. 359, 370 (1996).
9 510 U.S. 7 (1993).
10 Forest Grove, 129 S.Ct. at 2491.
Copyright 2010 © National School Boards Association. All Rights Reserved. 3 The Year in Review: A Legal Advocacy Update has been offered: “[i]t would be particularly strange for the Act to provide a remedy . . . when a school district offers a child inadequate special‐education services but to leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services all together.” 11 Instead, when determining whether reimbursement of a private placement is appropriate, hearing officers must consider all relevant factors, including whether the parents notified the school of the placement prior to the removal and the district’s past opportunities for evaluating the child. The dissenters, among other things, questioned the majority’s assumption that interpreting IDEA to allow reimbursement to students only if they have received special education from the district would allow the school district to “just refuse any request for special education or services . . . [to ensure] the prior service condition for eligibility . . . can never be met.” 12 The dissenters pointed to numerous IDEA requirements, including requesting a due process hearing, which allow parents to seek relieve of they believe the district has not offered a FAPE or failed to find a student eligible for special education. This decision will likely increase the number of requests for reimbursements for private school tuition from students who have never received special education services from the school district. Instead of working with school staff to develop and implement an IEP or requesting a due process hearing to challenge a determination of ineligibility, parents may immediately abandon IDEA’s collaborative process and try to receive private school‐tuition reimbursement, banking on a hearing officer concluding they were not offered a FAPE. Likewise, school districts may feel they have to offer IEPs that provide more than the law requires or to agree students are eligible for services under IDEA when they are not to avoid parents removing their children from public school and requesting tuition reimbursement. Title IX Does Not Preclude Section 1983 Constitutional Claims In Fitzgerald v. Barnstable School Committee, 13 the Court unanimously held that Title IX does not preclude constitutional claims based on sex discrimination under 42 U.S.C. § 1983 because Congress did not intend for Title IX to serve as the exclusive remedy for sex discrimination claims. The Fitzgerald’s alleged that their daughter, a kindergarten student, had been repeatedly sexually harassed by a third‐grade boy on the school bus. After an investigation, the principal determined that the evidence was insufficient to warrant discipline. The Fitzgerald’s brought a variety of claims including a Title IX claim against the school district and a Fourteenth Amendment equal protection claim under § 1983 against the school district and the superintendent. The First Circuit affirmed the district court’s rejection of the Title IX claim, concluding the school district’s response to the alleged harassment was “objectively reasonable.” The First Circuit further ruled that Title IX precluded the Fitzgerald’s §1983 equal protection claim because 11 Id. at 2495.
12 Id. at 2502 (Breyer, J., dissenting).
13 129 S.Ct. 788 (2009).
Copyright 2010 © National School Boards Association. All Rights Reserved. 4 The Year in Review: A Legal Advocacy Update Congress intended that Title IX to be the “sole means of vindicating the constitutional right to be free from gender discrimination perpetrated by educational institutions.” 14 The Supreme Court, in an opinion by Justice Alito, reversed the First Circuit on the §1983 claim. According to the Court, the key consideration in determining whether a statute precludes a §1983 claim is whether Congress intended the statute to “be the exclusive avenue through which a plaintiff may assert [the] claim.” 15 The Court focused on three factors in concluding Congress did not intend Title IX to preclude §1983 constitutional claims. First, Title IX contains only two enforcement mechanisms: the withdrawal of federal funding and an implied private right of action, which “stand in stark contrast to the ‘unusually elaborate,’ ‘carefully tailored,’ and ‘restrictive’ enforcement statutes” 16 in the previous cases where preclusion was found. Second, Title IX’s protections are narrower and broader in some respects than the Equal Protection Clause, indicating Congress did not intend Title IX to be the sole means of vindicating gender discrimination rights. Third, the “context and history” of Title IX, which was modeled after Title VI—
a statute that allowed §1983 claims at the time of its enactment—indicate Title IX does not preclude §1983 claims. Finally, the school district claimed this case should be affirmed because the Fitzgerald’s §1983 claim is foreclosed by the lower court’s finding that the school district and superintendent did not act with deliberate indifference. The Court, however, remanded the case because the Fitzgerald’s claimed they intended to advance claims of discriminatory treatment in investigating and handling student complaints and “no court has addressed the merits of their constitutional claims.” 17 The Fitzgerald decision may expose school officials to additional forms of liability in sexual harassment and other Title IX cases. Under Title IX, students cannot claim money damages from administrators in their personal capacities, but they may do so under §1983. As the facts of this case demonstrate, students may now bring multiple, nearly identical constitutional claims under Title IX and §1983 to collect from not only school boards but also from school administrators. Likewise, where the protections of Title IX are narrower than the protections of the Equal Protection Clause—for example, admission to K‐12 school districts (single‐
sex schools)—the Equal Protection Clause now provides a remedy where none was available under Title IX. 14 Fitzgerald, 129 S.Ct. at 788 citing Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 179 (1st Cir. 2007), rev’d, 129
S.Ct. 788.
15 Id. at 794 citing Smith v. Robinson, 468 U.S. 992, 1009 (1984).
16 Id. at 796.
17 Id. at 798.
Copyright 2010 © National School Boards Association. All Rights Reserved. 5 The Year in Review: A Legal Advocacy Update Active Resistance Not Required under Title VII’s Opposition Clause In Crawford v. Metropolitan Government of Nashville and Davidson County, 18 the Court held unanimously that Title VII protects employees who speak out about discrimination even when not at their own initiative, but in answering questions during an employer’s internal investigation. The school district employer asked employee Vicky Crawford, after hearing rumors of sexual harassment by employee Gene Hughes, whether Crawford had witnessed any “inappropriate behavior” on the part of Hughes. Crawford described several episodes during which Hughes had sexually harassed her. The district later fired Crawford, claiming that she had embezzled school district funds. Crawford sued, alleging that the district violated Title VII’s “opposition clause,” which forbids employers from retaliating against employees who have opposed discrimination, and Title VII’s “participation clause” which forbids retaliating against employees who participate in Title VII investigations. The district court granted summary judgment for the school district, and the Sixth Circuit affirmed. Both courts concluded Crawford failed to meet the requirements of (1) the opposition clause because she did not instigate or initiate any complaint and (2) the participation clause because the internal investigation was not pursuant to an EEOC charge. In the Court’s majority opinion, which reversed the Sixth Circuit, Justice Souter explained that Title VII’s definition of oppose goes beyond active resistance to include “someone who has taken no action at all to advance a position beyond disclosing it.” 19 The majority rejected the district’s argument that expanding the definition of “oppose” could cause employers to entirely avoid conducting internal investigations, since subsequently terminated employees could claim retaliation if they had participated in Title VII investigations. Instead, the Court reasoned that in the case of harassment by supervisors, since an affirmative defense is available to employers who exercise reasonable care to prevent and correct harassment as long as no tangible employment action has been taken, employers have a strong incentive to indentify and eradicate harassment. Likewise, the Court noted that if employees who informed their employer about discrimination when asked could be retaliated against, employees would have no reason to reveal Title VII offenses. The Court did not address Crawford’s participation clause argument. In his concurring opinion in which Justice Thomas joined, Justice Alito emphasized that the Court’s holding should not be read to include any employee conduct beyond testifying in an internal investigation. According to Justice Alito, opposition should be “active and purposive” 20 and should not include silent opposition or complaints made to a co‐worker that were not expressed to the employer. 18 129 S.Ct. 846 (2009).
19 Crawford, 129 S.Ct. at 851.
20 Id. at 854 (Alito, J., concurring).
Copyright 2010 © National School Boards Association. All Rights Reserved. 6 The Year in Review: A Legal Advocacy Update Following Crawford, school boards that are considering taking an adverse employment action against an employee should first determine if such an employee has provided the school board or administration any information, particularly recently, during a discrimination internal investigation. If the employee has, the school board is well‐advised to try to determine if the recommended adverse employment action is in retaliation for the information provided. Even if the school board determines retaliation is not likely the reason for the recommended employment action, the employee likely can state a claim under Title VII’s opposition clause pursuant to Crawford, but likely will be unable to prove causation. Changed Circumstances Easier for State to Prove Under the EEOA In a 5‐4 decision, the Court in Horne v. Flores 21 held that the district court had to review a Rule 60(b)(5) claim of changed circumstances in light of four particular changes in a case in which the lower court had found Arizona in violation of the Equal Educational Opportunities Act of 1974 (EEOA) by inadequately funding English Language‐Learner (ELL) instruction. A federal district court held Arizona was violating the EEOA by providing inadequate funding to cover the cost of ELL instruction in the Nogales Unified School District. The court ultimately applied the declaratory judgment statewide based on the Arizona Constitutional requiring “a general and uniform public school system.” A group of state officials sought relief from a series of court orders in this case under Rule 60(b)(5), claiming a change in circumstances after the Arizona legislature passed HB 2064, which provided additional statewide ELL funding. The district court, affirmed by the Ninth Circuit, found no changed circumstances, concluding that the additional ELL funding in HB 2064 did not rationally relate to the actual costs of ELL instruction. According to the majority opinion, written by Justice Alito, rather than applying a “flexible standard,” mindful of the federalism concerns associated with a federal court dictating state and local budget priorities, to determine if the EEOA violation had been remedied, the Ninth Circuit “concerned itself only with determining whether increased ELL funding complied with the original declaratory order.” 22 The Court instructed the lower court on remand to consider the following factual and legal changes which may indicate the EEOA violation has been remedied: (1) Arizona’s adoption of a new ELL instructional methodology; (2) the enactment of the No Child Left Behind Act of 2001, which spurred changes in the state’s ELL program; (3) improvements in the Nogales ELL program implemented by the superintendent; and (4) the overall increase in funding for the Nogales district. Finally, the Court concluded that a statewide injunction in this case was improper for a variety of reasons including the lack of evidence that the EEOA had been violated in any school district other than Nogales. The Court instructed the district court to vacate the statewide injunction unless the district court concludes Arizona is violating the EEOA on a statewide basis. 21 129 S.Ct. 2579 (2009).
22 Horne, 129 S.Ct. at 2595.
Copyright 2010 © National School Boards Association. All Rights Reserved. 7 The Year in Review: A Legal Advocacy Update In the view of the dissent, written by Justice Breyer, this case relaxes traditional Rule 60(b)(5) standards and by doing so, makes it easier for states to get out from the burdens of federal statutes—in this case at the expense of English Language Learners. In the big picture, it is probably fair to say this case was, or at least turned into, a statewide quest for additional ELL funding to meet the actual cost of ELL instruction. However, as a result of the Court’s decision, on remand, the district court will likely conclude that Arizona is complying with the EEOA regardless of whether that goal is realized. So, practically speaking, the decision in this case is most likely a blow to school finance litigation under the EEOA. 2008‐2009 Cases Relevant to School Districts ADEA Burden of Persuasion Never Shifts to the Employer In Gross v. FBL Financial Services, Inc. 23 the Court held that under the Age Discrimination in Employment Act (ADEA), the burden of persuasion never shifts to the employer in disparate treatment claims. Plaintiff alleged that FBL Financial Services, Inc. (FBL) had demoted him in violation of the ADEA. The district court instructed the jury that if it concluded that age was a motivating factor in demoting the plaintiff, the burden of proof would shift to FBL to prove that it would have demoted the plaintiff regardless of age. The Eighth Circuit reversed stating that under Price Waterhouse v. Hopkins 24 the plaintiff needed direct evidence that age motivated the adverse employment action to shift the burden of persuasion to the employer. The plaintiff conceded he did not present direct evidence of discrimination. In a 5‐4 opinion authored by Justice Thomas, the Court concluded that the burden of persuasion never shifts to the employer in ADEA disparate treatment cases, regardless of whether the plaintiff offers direct evidence of age discrimination. According to the Court, the so‐called burden‐shifting method of determining liability in Title VII cases, to which Price Waterhouse applies, cannot be applied to ADEA cases because of the different language in the two statutes. The ADEA prohibits discrimination “because of” age, whereas Title VII proscribes other forms of employment discrimination where the improper consideration was a “motivating factor” for the adverse employment action. Congress neglected to amend the ADEA to use the “motivating factor” language when it amended Title VII in 1991. Moreover, the Court rejected applying the Price Waterhouse burden‐shifting framework to the ADEA because “the problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims.” 25 In this case the Court could have applied Price Waterhouse to the ADEA and required the plaintiff to show “direct evidence” of age discrimination before shifting the burden of proof to the employer. Or, as the 23 129 S.Ct. 2343 (2009).
24 490 U.S. 228 (1989).
25 Gross, 129 S.Ct. at 2352.
Copyright 2010 © National School Boards Association. All Rights Reserved. 8 The Year in Review: A Legal Advocacy Update dissent suggests, the Court could have applied Price Waterhouse to the ADEA and concluded that 1991 Amendments to Title VII no longer require a showing of “direct evidence” to shift the burden of proof to the employer in ADEA cases. Instead, the Court chose the most employer‐friendly option of all—keeping the burden of proof with the plaintiff in ADEA disparate treatment cases regardless of the plaintiff’s evidence. Requiring plaintiffs to always retain the burden of proof in ADEA disparate treatment cases will make it more difficult for plaintiffs to win these cases. Pre‐PDA Pregnancy Discrimination Okay Under a Bona Fide Seniority System In AT&T Corporation v. Hulteen, 26 the Court held 7‐2 that under the Pregnancy and Discrimination Act (PDA), which amended Title VII, an employer may pay pension benefits calculated under a pre‐PDA accrual rule, giving less retirement credit for pregnancy leave than for medical leave, provided that the rule was created under a bona fide seniority system. Before the passage of the PDA, AT&T’s pension payment service credit policies granted employees absent on pregnancy leave comparatively less service credit than employees absent on disability leave. On the PDA’s effective date, AT&T adopted a new plan eliminating this distinction, but did not make any retroactive adjustments to the service credit calculations of women who had been subject to the pre‐PDA policies. Plaintiffs were four women who worked for AT&T, each with un‐credited pregnancy leave who claimed they were discriminated against on the basis of sex and pregnancy in violation of Title VII. The district court held itself bound by a prior Ninth Circuit decision, Pallas v. Pacific Bell, 27 which found a PDA violation where post‐PDA retirement eligibility calculations incorporated pre‐PDA accrual rules that differentiated on the basis of pregnancy. The Ninth Circuit affirmed. In an opinion written by Justice Souter, the Supreme Court reversed the Ninth Circuit. While acknowledging that the adoption of a service credit rule unfavorable to those out on pregnancy leave would violate the PDA today, the Court held that a seniority system does not necessarily violate Title VII when it gives current effect to rules that operated before the PDA. According to the Court, Congress intended Title VII to extend a measure of immunity to seniority systems, requiring proof of an intentionally discriminatory purpose in order for a seniority system to be unlawful. As AT&T’s pre‐PDA policies were not, at the time, considered gender‐based discrimination as a matter of law based on General Electric Co. v. Gilbert, 28 and could not have become facially discriminatory until the passing of the PDA, the Court held that they were not adopted with an intent to discriminate and were thus part of a bona fide seniority system. In fact, according to the Court, the only way AT&T could be in violation of the PDA is if the PDA were to apply 26 129 S.Ct. 1962 (2009).
27 940 F.2d 1324 (9th Cir. 1991).
28 429 U.S. 125 (1975).
Copyright 2010 © National School Boards Association. All Rights Reserved. 9 The Year in Review: A Legal Advocacy Update retroactively, re‐characterizing the acts as having been illegal when they were committed. However, the Court found no evidence of Congressional intent to apply the PDA retroactively. Hulteen also argued based on the recent changes to Title VII in response to Ledbetter v. Goodyear Tire & Rubber Co., 29 that the payment of pension benefits marked the moment which she was “affected by application of a discriminatory compensation decision or other practice” and that this “decision or other practice” 30 cannot be applied to her disadvantage. The Court rejected this argument reiterating that AT&T’s pre‐PDA decision to not award Hulteen service credit was not discriminatory at the time it was made. This decision is relevant to school districts for a number of reasons. First, some school districts may have had pre‐PDA pension service credit schemes that gave less credit to female employees who took pregnancy leave versus leave for other temporary disabilities, and did not make retroactive adjustments to the service credit calculations after the PDA was passed. Under Hulteen, such schemes are likely bona fide seniority systems that do not violate Title VII. Second, the Court rejected a retroactive application of the PDA in the absence of clear Congressional intent which is a favorable position for employers who have to modify employment policies and practices based on changes to employment statutes, like the recent changes to the Americans with Disabilities Act. Finally, the Court interpreted the Lily Ledbetter Fair Pay Act narrowly, which is an employer‐friendly position. Strong Basis Needed to Discriminate Intentionally to Avoid Disparate Treatment In a 5‐4 ruling in Ricci v. DeStefano, 31 the Court held that before an employer engages in intentional discrimination to avoid or remedy disparate impact, the employer must have a “strong basis in evidence to believe it will be subject to disparate impact liability.” 32 A group of 118 firefighters in New Haven, Connecticut took an examination to qualify for a promotion to lieutenant or captain. When the test was developed minority firefighters were oversampled to ensure the results of the test would not unintentionally favor white candidates. Nevertheless, white candidates outperformed minority candidates, and the City discarded the test results. A number of white and Hispanic firefighters, who would probably have been promoted based on their high scores, sued the City alleging a violation of Title VII’s prohibition against intentional discrimination. The City claimed it discarded the results based on its good‐faith belief that certifying the results would have violated Title VII’s prohibition against disparate impact discrimination. The Second Circuit affirmed the district court’s conclusion that the 29 550 U.S. 618 (2007).
30 Hulteen, 129 U.S. at 1973.
31 129 S.Ct. 2658 (2009).
32 Ricci, 129 S.Ct. at 2677.
Copyright 2010 © National School Boards Association. All Rights Reserved. 10 The Year in Review: A Legal Advocacy Update City was not required to certify the test results even though the City could not “pinpoint [the test’s] deficiency explaining [the test’s] disparate impact.” 33 Justice Kennedy, writing for the majority, first noted that Title VII prohibits both disparate treatment and disparate impact discrimination and that the task for the Court was to come up with guidance to reconcile these two prohibitions when they are in conflict. The Court held that the Fourteenth Amendment’s “strong basis in evidence” standard for allowing government action to remedy past racial discrimination would resolve any conflict. In other words, if throwing out a test would cause intentional discrimination but keeping it may cause a disparate impact, it can be thrown out only if there is a “strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate‐
impact provision.” 34 The Court rejected the City’s argument that it met the strong‐basis‐in‐evidence standard. While the City could show a significant statistical disparity in test results based on race, it was unable to show that the test was not job related and consistent with business necessity or that equally valid less‐discriminatory alternatives were rejected—largely because of the City’s “painstaking” effort to eliminate racial bias when developing the test. It is not difficult to imagine an employment practice that a school district thought was race‐neutral but in practice proves to perhaps have a disparate impact; for example, something as simple as recruiting at particular colleges. Ricci does not foreclose the possibility of rejecting the results of an employment practice because of a disparate impact; but the bar is high. While the dissent points to “multiple flaws” in New Haven’s test, school districts are well‐advised to follow New Haven’s example of trying to eliminate bias from employment practices before they are implemented to avoid having to dismantle or defend them. Clearly Established Only May Be Considered for Qualified Immunity In Pearson v. Callahan, 35 the Court unanimously overturned Saucier v. Katz, 36 holding that in qualified immunity cases lower courts are no longer required to decide whether the facts make out a violation of a constitutional right before deciding whether the right was clearly established. Justice Alito discussed a variety of circumstances in which lower courts should not spend “scare judicial resources” 37 deciding if a constitutional right was violated and should instead just decide if the right was 33 Id. at 2671.
34 Id. at 2676.
35 Pearson v. Callahan, 129 S.Ct. 808 (2009).
36 533 U.S. 194 (2001).
37 Pearson, 129 S.Ct. at 818.
Copyright 2010 © National School Boards Association. All Rights Reserved. 11 The Year in Review: A Legal Advocacy Update clearly established. First, where a constitution right is clearly not established but it is unclear whether there is a right, deciding the latter question is “academic.” Second, it is a waste judicial resources to decide whether a constitutional right exists when meaningful precedent will not be developed because the constitutional questions are too fact specific, a higher court may soon decide the issue, or the constitutional question rests on state law. Third, deciding whether a constitutional claim exists may lead to bad decision‐making if the constitutional claim is inadequately briefed or the court devotes inadequate care to constitutional claim and instead spends more time on the more difficult clearly established question. Finally, where a court holds a defendant committed a constitutional violation but the violation was not clearly established, the defendant’s right to appeal the adverse holding may be contested. For these reasons, the Court held that lower courts are able to use their discretion in deciding whether to first apply the clearly established prong of the qualified immunity test. It is difficult to predict the impact of this decision for school districts because it is not yet clear how lower courts will apply this new discretion. Interestingly, the Court dismissed concerns that relaxing the Saucier framework may discourage plaintiffs from bringing novel claims against local governments in cases where qualified immunity is available which will lead to plaintiffs bringing more custom, policy, or practice claims against local governments since qualified immunity does not apply to those cases. Whether the Saucier procedure is utilized, the Court reasoned, plaintiffs will consider that qualified immunity may shield individual defendants from liability and thus will pursue additional suits against the local government if it is economically feasible to do so. However, if the Court is wrong and plaintiffs bring more custom, policy, or practice claims against local governments, school district will have to contend with these more complicated and potentially expensive lawsuits. 2009‐2010 Cases Relevant to School Districts Additional Attorney’s Fees for Quality of Performance and Results O btained In Kenny A. v. Purdue 38 the Court will determine whether a reasonable attorney’s fee award under a federal fee‐shifting statute may be enhanced solely on the basis of quality of performance and results obtained when those factors are already included in the lodestar calculation. The plaintiffs brought a class action lawsuit against several state and county entities in Georgia, alleging a variety of deficiencies in the state foster care system, including 15 causes of action under state and federal law. The parties settled the case, but were unable to agree on the amount of attorney’s fees. The district court eventually awarded the plaintiff’s counsel over $10 million dollars in fees, $4.5 million of which was an enhancement, citing the attorneys’ extraordinary professionalism, commitment, and dedication as justification. 38 532 F.3d 1209 (11th Cir. 2008).
Copyright 2010 © National School Boards Association. All Rights Reserved. 12 The Year in Review: A Legal Advocacy Update While the Eleventh Circuit questioned whether its precedent conflicted with Supreme Court’s, it affirmed the district court’s fee award, concluding that it was bound by NAACP v. Evergreen 39 and Norman v. Housing Authority of Montgomery, 40 in which the Eleventh Circuit allowed for enhancements based on exceptional results and superior representation. School districts are frequently the subject of litigation under federal fee‐shifting statutes like Title VII and IDEA. Awarding attorney’s fees to plaintiffs lawyers under these statutes for quality of performance and results obtained may make settling these cases more difficult and most costly. Likewise, fee enhancements paid by school districts, even to sympathetic plaintiffs like the ones in this case, will make fewer funds available for school districts to serve students. 39 812 F.3d 1332 (11th Cir. 1987).
40 836 F.2d 1292 (11th Cir. 1988).
Copyright 2010 © National School Boards Association. All Rights Reserved. 13