UNDERSTANDING THE ROLES OF A FLORIDA SCHOOL BOARD:

Exercising Legislative, Executive, and Quasi-Judicial Power

FSBA, FADSS, FSBAA, FERMA, SUNSPRA, FELL 70th Annual Joint Conference

Tampa, Florida

December 1-4, 2015

Daniel B. Harrell FLORIDA BAR BOARD CERTIFIED IN EDUCATION LAW

Gonano & Harrell TD Bank Building

1600 S. Federal Highway, Suite 200 Fort Pierce, Florida 34950

(772) 464-1032 Ext. 1010 (Voice) (772) 464-0282 (Facsimile)

(772) 595-2464 (Mobile) dharrell@gh-law.com (Email)

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I. THE AMERICAN SYSTEM OF PUBLIC K-12 EDUCATION—OVERVIEW

A. Origins.

At the start of the Republic, and into the 19th century, in most of the Country education was provided by private, not public, sources. By the end of the 19th century, however, public elementary and secondary education had become more firmly established as free, compulsory, and supported primarily through local taxation.

B. Governance.

Day-to-day control of public K-12 education has long rested chiefly with local school districts through local school boards, with some general oversight by the states. The authority of these local school boards, in turn, is derived from various state constitutional, statutory, and administrative provisions.

C. Recent Developments.

At least since the latter part of the 20th century, the general trend has been toward (1) refinement, reinforcement, and expansion of public education, and (2) evolution toward a more systematic, centralized, national approach, with increasing oversight by, and varying degrees of support from, the state and federal governments.

II. OUTLINE OF THE AMERICAN SYSTEM OF GOVERNMENT

A. Federalism.

1. Divided Sovereignty. Under the Tenth Amendment, sovereignty in the United States is divided among a

central federal government with limited, specific powers; the states as constituent political units; and the people with the remaining sovereign authority: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Amend. X, U.S. Const.

2. Police Power to the States. Among the elements of authority reserved by the Tenth Amendment to the states

is the police power—the capacity of each state to regulate behavior and enforce

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order within its territory for the betterment of the health, safety, morals, and welfare of its inhabitants. The states exercise this power by enacting laws (legislation) and compelling obedience to those laws (executive enforcement), subject to judicial oversight (courts) to assure that the legislative and executive branches do not infringe rights protected by the federal and state constitutions and are not arbitrary or oppressive.

3. Political Subdivisions of the States. Each state, in turn, has delegated portions of its reserved sovereignty to local

governmental bodies, political subdivisions, that exercise authority over a limited portion of the state. In Florida:

(a) The exercise of the general police power at the local level has been

delegated to local general purpose governments—counties and municipalities. See Art. VIII, §§ 1 and 2, Fla. Const.

(b) Certain specific powers have been delegated to various types of special

districts. See, e.g., Ch. 190, Fla. Stat. (community development districts); Ch. 298, Fla. Stat. (water control districts); Ch. 348, Fla. Stat. (expressway and bridge authorities).

(c) Responsibility for publicly funded education has been delegated to

educational units—local school boards for elementary and secondary schools, and local boards of trustees for post-secondary colleges and universities. See Art. VIII, §§ 4 and 7(c), Fla. Const.

See also Section 1.01(8), Fla. Stat.: “The words ‘public body, ‘body politic,’ or ‘political subdivision’ include counties, cities, towns, villages, special tax school districts, special road and bridge districts, bridge districts, and all other districts in this state.” Thus, at least for purposes of state law, school boards are “political subdivisions.” See Dade County School Board v. Radio Station WQBA, 699 So.2d 701, 703 [121 Ed. Law Rep. [427]] (Fla. 3d D.C.A. 1997); C.L. v. State, 693 So.2d 713, 715 (Fla. 4th D.C.A. 1997); Op. Att’y Gen. Fla. 2013-28, n. 2; Op. Att’y Gen. Fla. 97-82, n. 5.

B. Separation of Powers—Three Branches of Government.

The federal and state constitutions divide the powers of government into three primary branches, each with separate and independent powers and areas of responsibilities:

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1. Legislative Power. (a) United States—Congress—Art. I, § 1, U.S. Const.

(b) State of Florida—Legislature—Art. II, § 3, and Art. III, § 1, Fla. Const. 2. Executive Power.

(a) United States—President—Art. II, § 1, U.S. Const.

(b) State of Florida—Governor—Art. II, § 3, and Art. IV, § 1, Fla. Const. 3. Judicial Power.

(a) United States—“[O]ne Supreme Court, and . . . such inferior Courts as the Congress may from time to time ordain and establish.”—Art. III, § 1, U.S. Const.

(b) State of Florida—“[A] supreme court, district courts of appeal, circuit

courts and county courts.”—Art. II, § 3, and Art. V, § 1, Fla. Const.

The separation of powers doctrine is recognized in the Florida Constitution’s prohibition on the delegation of authority by one branch to another: “The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” Art. II, § 3, Fla. Const. (emphasis supplied).

C. A “Fourth Branch”—Administrative Agencies.

As the complexity of the American society and economy has grown, Congress, state legislatures, Presidents, and governors (and, in the case of public schools in Florida, the people) have delegated specific authority to identified agencies to control and govern certain detailed facets of modern life: 1. Types of Agencies.

(a) Independent Agencies. Usually lead by a collegial body rather than a single individual, with members typically appointed by the Executive, often subject to legislative confirmation, for a term of years. Examples:

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(i) Federal—Federal Communications Commission; Securities and

Exchange Commission (ii) State—Florida Commission on Ethics; Florida Public Service

Commission (b) Executive Departments. Usually lead by a single commissioner, director,

or other department head who is typically appointed by the Executive to serve at the will of the Executive. Examples:

(i) Federal—Internal Revenue Service; United States Department of

Agriculture (ii) State—Florida Department of Children and Families; Florida

Department of Revenue

(c) (Florida) Educational Units and Special Districts. Usually lead by a collegial body, with members being elected, appointed, serving ex officio by virtue of other office, or a mix, depending on the enabling Constitutional or statutory framework. Examples:

(i) Educational Units—School Boards; College and University

Boards of Trustees

(ii) Special Districts (classified as “independent” or “dependent”)—Community development districts (independent); mosquito control districts (usually dependent)

2. Legislative, Executive, or Judicial?—Some of Each.

The mandate of many administrative agencies combines aspects of all three branches of government:

(a) Governmental agency rules, regulations, and policies (Rule-making—

legislative action)

(b) Governmental agency operations (Administration, enforcement—executive action)

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(c) Governmental agency adjudication (Administrative hearings—quasi-judicial action)

“Except in relatively rare cases,” this “combination of powers in a single agency” has been sustained as an appropriate delegation of legislative, executive, and judicial powers that does not violate the separation of powers doctrine. Canney v. Board of Public Instruction of Alachua County, 278 So.2d 260, 262 (Fla. 1973).

III. FOUNDATIONS OF AMERICAN LAW

A. The Sources.

1. Constitutions. (Federal and State)

2. Common Law. (Judicial rulings—court precedent/case law)

3. Statutes, Laws, Codes, Ordinances. (Legislation—Congressional acts, state legislative action, local general purpose government codes and ordinances)

4. Administrative Law.

(a) Governmental Agency Rules. (Policies—Legislative action)

(b) Governmental Agency Operations. (Interpretation, application, and

enforcement of an agency’s delegating/enabling legislation and its own rules—Executive action)

(c) Governmental Agency Precedent. (Orders—Quasi-judicial action)

B. Ranking the Sources.

In the event of a conflict in the wording or interpretation of the various sources of American law, the general order of precedence:

1. Constitutions Over Legislation—Judicial Review. Each federal or state

legislative enactment must find its authority, and is subject to the limitations, set forth in the applicable Constitution(s), as interpreted by the courts. Duly enacted legislation carries a presumption of validity, but will be overturned if contrary to constitutional mandate. Examples:

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(a) Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (Congress does not have the power to pass legislation that overrides the Constitution, and courts have the power to interpret the law, including determining consistency with the Constitution).

(b) Bush v. Holmes, 919 So.2d 392 [206 Ed. Law Rep. [756]] (Fla. 2006)

(Vouchers under the Opportunity Scholarship Program violate the public education “uniformity clause” in the Florida Constitution).

2. Legislation Over Agency Rules.

(a) Consistency with Governing Statutes. Each administrative rule or policy is subject not only to limitations in the Constitution(s) but also to those found in applicable federal and state legislation, again as interpreted by the courts. Examples:

(i) Hayden ex rel. A.H. v. Greensburg Community School

Corporation, 743 F.3d 569 [302 Ed. Law Rep. [61]] (7th Cir. 2014) (a school district’s hair length policy applicable only to boys violates the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendment Acts of 1972).

(ii) Renee v. Duncan, 623 F.3d 787 [261 Ed. Law Rep. [562]] (9th Cir.

2010), reaffirmed 686 F.3d 1002 [282 Ed. Law Rep. [1002]] (9th Cir. 2012) (A regulation adopted by the U.S. Department of Education impermissibly expanded the definition of “highly qualified teacher” contained in the No Child Left Behind Act).

(b) Ambiguous Legislation. If statutory language is ambiguous, the

interpretation given by the agency charged with enforcing the statute is entitled to great deference unless shown to be clearly erroneous. E.g., Florida Department of Education v. Cooper, 858 So.2d 394 [182 Ed. Law Rep. [997]] (Fla. 1st D.C.A. 2003) (consistent with the interpretation given by the Florida Department of Education, confidential standardized test instruments, as opposed to standardized test scores, are not student records subject to disclosure to parents).

(c) Agency Discretion. If the action of an administrative agency is within

discretionary powers granted in its enabling legislation, that action will not be disturbed unless unlawful. A reviewing court may not substitute its

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judgment on matters of public policy but must defer to the agency so long as the agency’s application or construction of the governing legislation does not violate fundamental fairness nor frustrate clear legislative intent.

(i) Compare Florida Department of Education v. Cooper (The

reviewing court found the state statutory language ambiguous and upheld the Florida Department of Education’s reading of the student records law as “within the range of possible and reasonable interpretations,” 858 So.2d at 397) with Renee v. Duncan (The court determined that the involved federal statute “unambiguously expressed [the] intent of Congress” and the challenged regulation adopted by the U.S. Department of Education was inconsistent with that intent, 623 F.3d at 796).

(ii) Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618 [220 Ed. Law

Rep. [50]] (2007) (Where a student’s “speech”—a banner displayed at a school-supervised event—was "reasonably viewed as promoting illegal drug use," a principal may legally restrict that speech based on the school's "important—indeed, perhaps compelling interest" in deterring drug use by students).

(iii) Board of Education of Rogers v. McCluskey, 458 U.S. 966, 102

S.Ct. 3469 [5 Ed. Law Rep. [136]] (1982) (per curiam) (A federal court should not substitute its own interpretation of student disciplinary rules for those of the school board officers who adopted it and are entrusted with its enforcement).

3. Federal Legislation and Rules Over State Law and Rules—Preemption. When state law and federal law conflict, federal law displaces, or preempts, state

law, by virtue of the Supremacy Clause of the United States Constitution. Art. VI, Cl. 2, U.S. Const. Preemption applies regardless of whether the conflict arises from legislation, court decisions, administrative agency rules or orders, or constitutions. (a) McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) (The Necessary

and Proper Clause, Art. I, § 8, Cl. 18, U.S. Const., confers upon the federal government powers to pass laws, including the power to incorporate a national bank, with which the states may not interfere by the imposition of a direct tax).

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(b) Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) (The power to regulate

interstate commerce, granted to Congress by the Commerce Clause, Art. I, § 8, Cl. 3, U.S. Const., is plenary, encompassing navigation licensing, and taking precedence over any similar state licensing).

(c) E.R.K. v. Hawaii Department of Education, 728 F.3d 982 [297 Ed. Law

Rep. [20]] (9th Cir. 2013) (A state statute barring special education students from attending school past age 20 violated the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”), which provides for eligibility to age 22).

IV. FLORIDA SCHOOL BOARDS

A. Overview.

1. The Constitutional Mandate. “The school board shall operate, control and supervise all free public schools within the school district and determine the rate of school district taxes within the limits prescribed herein.” Art. IX, § 4(b), Cl. 1, Fla. Const.

2. The District System Retained.

(a) County Unit. “Each county shall constitute a school district . . . . Each district shall constitute a unit for the control, organization, and administration of schools.” Section 1001.30, Fla. Stat.

(b) The Board as Governing Body. “The governing body of each school

district shall be a district school board.” Section 1001.40, Fla. Stat. (c) The Board Constitutes a Corporation. “Each district school board is

constituted a body corporate . . . .” Section 1001.40, Fla. Stat.

3. Home Rule for Public Education.

(a) Exercise Any Power Unless Expressly Prohibited. “[D]istrict school boards shall operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law.” Section 1001.32(2), Fla. Stat. (emphasis supplied).

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(b) Perform Duties Found Necessary for District Improvement. “The district

school board shall . . . [p]erform duties and exercise those responsibilities that are assigned to it by law or by rules of the State Board of Education or the Commissioner of Education and, in addition thereto, those that it may find to be necessary for the improvement of the district school system in carrying out the purposes and objectives of the education code.” Section 1001.41(5), Fla. Stat. (emphasis supplied).

(c) Exercise Home Rule Consistent with State Law. “While the school board

has significant authority in matters not addressed specifically by the Legislature, it is prohibited from promulgating rules at variance with legislation.” W.E.R. v. School Board of Polk County, 749 So.2d 540, 542 (Fla. 2d D.C.A. 2000). See also Section 120.81(1)(a), Fla. Stat. (authorizing school boards to adopt rules implementing the broad general powers granted under Section 1001.41 notwithstanding the APA’s otherwise-applicable limitation that agencies may only adopt rules to implement specific powers), and Op. Att’y Gen. Fla. 2010-53 (Florida’s Clean Indoor Air Act, which preempts regulation of smoking to the state, precludes a school board from otherwise regulating smoking on school property).

4. The Mash-Up: Subject to the Administrative Procedure Act (Usually).

(a) Each School District is an “Agency” Subject to the APA. As defined in the Administrative Procedure Act, Chap. 120, Fla. Stat., the term “educational unit” includes a local school district, and the term “agency” includes all educational units “if acting pursuant to powers other than those derived from the constitution . . .” See Section 120.52(1)(a) and (6), Fla. Stat. (listing “educational units” among the entities defined as an “agency” for purposes of the APA, and defining “educational unit” to include a local school district). See also Volusia County School Board v. Volusia Home Builders Ass’n, Inc., 946 So.2d 1084 [216 Ed. Law Rep. [285]] (Fla. 5th D.C.A. 2006) (noting that a school board is an agency subject to the APA).

But: (b) School Board Members Are Constitutional Officers. “In each school

district there shall be a school board composed of five or more members

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chosen by vote of the electors in a nonpartisan election for appropriately staggered terms of four years, as provided by law.” Art. IX, § 4(a), Cl. 2, Fla. Const. See also Section 112.3142(1), Fla. Stat. (including district school board members as “constitutional officers” required to complete annual ethics training).

And: (c) Statutory Exceptions to APA Applicability. The APA itself contains a

number of exceptions to its applicability to school boards, including: (i) Section 120.74(9)—exempts educational units (such as school

boards) from generally-applicable requirements relating to agency annual rulemaking and regulatory plans and reports

(ii) Section 120.81(1)(a)—authorizes school boards to adopt rules

implementing the broad general powers granted under Section 1001.41 notwithstanding the APA’s otherwise-applicable limitation that agencies may only adopt rules to implement specific powers

(iii) Section 120.81(1)(b)—provides that the preparation or

modification of curricula by an education unit (such as a school board) is not a rule under the APA

(iv) Section 120.81(1)(d)—provides somewhat relaxed notice

requirements for rulemaking by educational units (such as school boards)

(v) Section 120.81(1)(e)—provides that most educational units

(including school boards) need not make certain otherwise required filings with the state Administrative Procedures Committee

(vi) Section 120.81(1)(f) and (h)—relaxes certain hearing and notice

requirements for student disciplinary proceedings. See also Section 1006.07(1)(a), Fla. Stat. (exempting suspension hearings from the APA, and providing limited APA application to expulsion hearings).

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(vii) Section 120.81(1)(j)—relaxes the timing requirements for preparation of the agenda for a special school board meeting

(viii) Section 120.81(1)(k)—provides that students do not have a

statutory right to seek a waiver or variance from the rules of educational units (such as school boards)

(ix) Section 120.81(1)(l)—provides that the APA’s otherwise-

applicable requirements for a statement of estimated regulatory costs and consideration of impact on small businesses, counties, and cities do not apply to the adoption of most school board personnel rules

B. Serving in Multiple Roles.

1. Legislative Authority—The Real Power. Each school board acts as the legislative body of its respective district. In that capacity, a school board is responsible for establishing policies to govern operations, appropriating funds to maintain those operations, authorizing borrowing in support of district facilities and operations, and establishing appropriate terms and conditions of employment for all employees. In its legislative role, a school board undertakes, among other matters:

(a) Rulemaking. Determining policies and programs, adopting rules, and

prescribing and adopting standards (see Section 1001.41(1), (2), and (3), Fla. Stat.), in such areas as:

• Student assignment (Section 1001.41(6), Fla. Stat.) • Plans for operation of schools (Section 1001.42(4), Fla. Stat.) • Appointment, compensation, promotion, suspension, and dismissal

of employees (Section 1001.42(5)(a), Fla. Stat.) • Ethical standards for instructional and administrative staff (Section

1001.42(6), Fla. Stat.) • Admission, classification, and graduation of students (Section

1003.02(1)(a), Fla. Stat.) • Enforcement of attendance laws (Sections 1003.02(1)(b) and (c)

and 1003.21(1)(a)2 and (2)(b), Fla. Stat.) • Control and discipline of students (Sections 1003.02(1)(c) and

1006.07(1) and (2), Fla. Stat.) • Student immunization (Section 1003.22(4), Fla. Stat.)

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• Patriotic programs (Section 1003.44(1), Fla. Stat.) • Administration of medication and provision of medical services by

school personnel (Section 1006.062, Fla. Stat.) • Hazing (Section 1006.135(2), Fla. Stat.) • Secret societies (Section 1006.14(6), Fla. Stat.) • Bullying and harassment (Section 1006.147(4), Fla. Stat.) • Dating violence and abuse (Section 1006.148(2), Fla. Stat.) • Transportation of students (Sections 1006.21(2) and 1006.22(12),

Fla. Stat.) • Use of school buses for public purposes (Section 1006.261(1)(c),

Fla. Stat.) • Instructional materials (Section 1006.28 and 1006.40(5), Fla. Stat.) • Instructional materials review process (Section 1006.283(2) and

1006.40(5), Fla. Stat.) • Instructional materials disposal (Section 1006.41, Fla. Stat.) • Delinquent accounts (Section 1010.03(4), Fla. Stat.) • Purchasing (Section 1010.04(2), Fla. Stat.) • Electronic transfer of funds (Section 1010.11, Fla. Stat.) • Appointment, promotion, transfer, suspension, and dismissal of

personnel (Section 1011.60(3), Fla. Stat.) • Mentors and support for first-time teachers (Section 1012.05(3)(a),

Fla. Stat.) • Meritorious service awards (Section 1012.22(1)(g), Fla. Stat.) • Lunch, planning, and training time for teachers (Section

1012.22(1)(h), Fla. Stat.) • Personnel leave (Sections 1012.22(2), 1012.61, 1012.62,

1012.64(3), and 1012.65, Fla. Stat.) • Personnel matters generally (Section 1012.23(1), Fla. Stat.) • Substitute teachers (Section 1012.35(1), Fla. Stat.) • Adjunct teaching certificates (Section 1012.57(1), Fla. Stat.) • Complaints against teachers and administrators (Section

1012.796(1)(d), Fla. Stat.) • Protection of educational facilities and grounds when used for

legal assembly or community activity (Section 1013.10, Fla. Stat.) • Student records (Fla. Admin. Code Rule 6A-1.0955(6))

(b) Designating Positions and Qualifications. See Section 1001.42(5)(a), Fla. Stat.

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(c) Adopting the Budget and Levying Taxes. See Sections 1001.42(12)(b) and (c), 1011.02, 1011.03, and 1011.04, Fla. Stat.

(d) Authorizing Bonds and Other Debt. See Sections 1001.42(12)(e), 1011.12

to .16, and 1013.15, Fla. Stat. (e) Establishing Terms and Conditions of Employment for All Staff. See

Sections 447.203(10), 447.403, and 1001.42(5)(a), Fla. Stat. 2. Executive Authority—A More Limited But Important Role.

(a) The Superintendent is Chief Executive Officer. The executive authority of a Florida school district resides primarily with the district school superintendent. See Section 1001.33, Fla. Stat. (“[A]ll public schools conducted within the district shall be under the direction and control of the district school board with the district school superintendent as executive officer”). See also Art. IX, § 5, Fla. Const.; Sections 1001.48, 1001.49, and 1001.51, Fla. Stat.

(b) Superintendent Advice and Counsel Before Most Actions.

(i) The superintendent is to “[a]dvise and counsel with the district school board on all educational matters and recommend to the district school board for action such matters as should be acted upon.” Section 1001.49(2), Fla. Stat. See also Section 1001.51, Fla. Stat. (“It shall be presumed that, in the absence of the record required in this section” [i.e., per subsection (3), the “minutes of all official actions and proceedings of the district school board”], the recommendations, nominations, and proposals required of the district school superintendent were not contrary to the action taken by the district school board in such matters”).

(ii) Nonetheless, subject to limits on the exercise of discretion, final

decision-making authority on virtually all school district actions remains with the school board. See, e.g., Section 1001.41(4), Fla. Stat. (“The district school board shall constitute the contracting agent for the district school system.”)

(c) Limits on Personnel Actions. A school board may not appoint (award an

employment contract to) an individual for a particular position unless the

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superintendent has recommended the appointment, or the board has rejected for good cause shown three prior nominations for the same position. See Section 1012.22(1)(a)1 and 3, Fla. Stat. Likewise, a school board may not reject a superintendent’s recommendation except for good cause. See Section 1012.22(1)(a)2.

(i) McCalister v. School Board of Bay County, 971 So.2d 1020 [228

Ed. Law Rep. [994]] (Fla. 1st D.C.A. 2008) (A school board may reject the superintendent’s nomination for a position, including when the nomination contemplates a transfer, only if questions exist regarding the nominee’s ability to perform in the position for which nominated; the board may not consider suitability for a different, current position that the nominee may wish to retain).

(ii) Buckner v. School Board of Glades County, 718 So.2d 862 [130

Ed. Law Rep. [355]] (Fla. 2d D.C.A. 1998) (If the statutory employee assessment procedures are not used by a school board when it rejects a superintendent’s nomination for a position, the board must make a “good cause” showing why those procedures were ignored; the nominee is entitled to a fair hearing and the board may not reject the nomination arbitrarily).

(iii) Cox v. School Board of Osceola County, 669 So.2d 353 [107 Ed.

Law Rep. [1066]] (Fla. 5th D.C.A. 1996) (A school board lacks authority to reinstate an employee whom the superintendent has refused to nominate for reappointment, despite allegations that the refusal to reappoint was improper).

(iv) Spurlin v. School Board of Sarasota County, 520 So.2d 294 [45

Ed. Law Rep. [450]] (Fla. 2d D.C.A. 1988) (“Good cause” for rejecting a superintendent’s recommendation for appointment is not limited to the statutory reasons for dismissal or suspension; a school board may look to the published principles governing Florida’s education profession).

(v) Von Stephens v. School Board of Sarasota County, 338 So.2d 890

(Fla. 2d D.C.A. 1976) (A school board must appoint the individual recommended by the superintendent absent a legally sufficient cause to reject the recommendation).

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(d) Exceptions to the Requirement for a Superintendent’s Recommendation. Among the matters on which a school board may act without first receiving a recommendation from the superintendent:

• Establishing board member residence area boundaries (Section

1001.36(2), Fla. Stat.) • Placing on the ballot a proposition for single-member

representation, or for return to at-large representation (Section 1001.362(3)(a) and (9), Fla. Stat.)

• Electing board officers (Section 1001.371, Fla. Stat.) • Reimbursing board members for expenses incurred in official

travel (Section 1001.39, Fla. Stat.) • Requesting a ballot proposition to make the office of

superintendent appointive, or to return the position to elective (Section 1001.461(2) and (3), Fla. Stat.)

• Making alternate employment selections when the statutory conditions have been satisfied (Section 10012.22(1)(a)3, Fla. Stat.)

• Hiring and directing employees and advisors who report directly to the board, including the superintendent when employed as provided in Art. IX, § 5, Fla. Const., and Section 1001.50, Fla. Stat.; board counsel; district internal auditor; and board administrative assistant

• Establishing and making appointments to board advisory committees

3. Quasi-Judicial Authority—The Final Administrative Arbiter (Usually).

(a) Board Function. Each school board also acts in a quasi-judicial capacity in certain matters, as the tribunal responsible for objectively determining facts, drawing conclusions, applying law, and taking official action. “The correct understanding of the terminology ‘quasi-judicial’ means only that the School Board is acting under certain constitutional strictures which have been enforced upon all administrative boards and not that the School Board has become a part of the judicial branch.” Canney v. Board of Public Instruction of Alachua County, 278 So.2d 260, 263 (Fla. 1973).

(b) Limitations. Strict judicial rules of evidence and procedure do not apply

when a school board acts in a quasi-judicial capacity, but the APA and the K-20 Education Code, Chapters 1000-1013, Fla. Stat., impose procedural and substantive limitations on a board’s actions, including:

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• Sections 120.569 and 120.57 (establishing procedures for

proceedings affecting substantial interests) • Section 1002.33(8) (governing nonrenewal and termination of

charter school contracts) • Section 1003.01(5) (limiting the duration of a student expulsion) • Section 1006.07 (including provisions relating to expulsion

hearings and the bases for expulsion) • Section 1012.22(1)(f) (limiting the bases for serious discipline of

instructional personnel to those set forth in Chapter 1012) • Section 1012.33 (among other matters, setting forth provisions

relating to discipline of instructional personnel, including authorizing a school board to refer a case to the Division of Administrative Hearings or to conduct the hearing itself).

(c) Flexibility in Proceedings. When acting in a quasi-judicial capacity, a

school board does not become a “judicial body; its hearings are informal and due process is generally accorded if the parties are provided notice of the proceeding and an opportunity to be heard. See Seiden v. Adams, 150 So.3d 1215, 1219 [311 Ed. Law Rep. [1152]] (Fla. 4th D.C.A. 2014).

(d) Subject Areas. Among the areas in which a school board acts in a quasi-

judicial capacity, and has authority to take final agency action:

• Nonrenewal or Termination of a Charter Contract—See Section 1002.33(8)(b) and (c), Fla. Stat.

• Student Expulsion—See Sections 1006.07, 1006.08, and 1006.09,

Fla. Stat. See also Section 1003.01(5), Fla. Stat. (“‘Expulsion’ means the removal of the right and obligation of a student to attend a public school under conditions set by the district school board, and for a period of time not to exceed the remainder of the term or school year and 1 additional year of attendance.”)

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• Employee Discipline—Section 1012.22(1)(e), Fla. Stat. (“The district school board shall suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged, removed, or returned to annual contract except as provided in this chapter.”)

(e) Judicial Review of Final Agency Action. When a school board’s order

constitutes final agency action (is an administratively final decision), the order is appealable to the courts. See Section 120.68(1). See also Gootee v. School Board of Monroe County, ___ So.3d ___ [___Ed. Law Rep. [___]], 2015 WL 56003495, 40 Fla. L. Weekly D2196 (Fla. 4th D.C.A. Sept. 24, 2015).

(f) Exceptions to Administrative Finality. For certain determinations relating

to its operations, a school board does not hold final administrative decision-making authority, including: • Appeals of denials of charter school applications (Final agency

action is by the State Board of Education. See Section 1002.33(6)(d), Fla. Stat.)

• Disputes regarding the terms and conditions of charter school

contracts (Final agency action is by an Administrative Law Judge of the Division of Administrative Hearings. See Section 1002.33(6)(h), Fla. Stat.)

• Due process complaints challenging the identification, evaluation,

placement, and educational and related services provided to students with exceptionalities (Final agency action is by an Administrative Law Judge of the Division of Administrative Hearings. See Section 1003.57(1)(c), Fla. Stat., Fla. Admin. Code Rule 6A-6.03311. See also 20 U.S.C. § 1415(f); 34 C.F.R. § 300.511.)

• Complaints filed under Section 504 of the Rehabilitation Act of

1973, 29 U.S.C. § 794 (“Section 504”) (Final agency action must be made by an impartial hearing officer. See 34 C.F.R. § 104.36.)

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4. All Authority Is Exercisable by the Board Solely As a Collegial Body.

Whether functioning in a legislative, executive, or quasi-judicial capacity, a school board acts as a collegial body; individual board members have no independent decision-making authority. See Section 1001.42, Fla. Stat. (“The district school board, acting as a board, shall exercise all powers and perform all duties listed [in the section]”) (emphasis supplied). See also Op. Att’y Gen. Fla. 97-61 (attorney for a school board represents the board as a collegial body and acts at the request of the board as a collegial body and not at the request of an individual member). Cf. Perez v. Crew, No. 07-156-CA-02, slip op at 6-7 (11th Cir. Dade Co., Fla. Apr. 26, 2007) (order dism’g Counts I & II with prejudice) (individual board members do not have the right to insist that items be included on the school board agenda). (a) Definition. “‘Collegial body’ means a governmental entity marked by

power or authority vested equally in each of a number of colleagues.” Section 112.3135(1)(b), Fla. Stat.

(b) Final Agency Authority. “‘Agency head’ means the person or collegial

body in a department or other governmental unit statutorily responsible for final agency action. An agency head appointed by and serving at the pleasure of an appointing authority remains subject to the direction and supervision of the appointing authority, but actions taken by the agency head as authorized by statute are official acts.” Section 120.52(3), Fla. Stat. (emphasis supplied).

(c) Quorum Requirement. “A majority shall constitute a quorum for any

meeting of the district school board. No business may be transacted at any meeting unless a quorum is present, except that a minority of the district school board may adjourn the meeting from time to time until a quorum is present.” Section 1001.372(4), Fla. Stat. (emphasis supplied).

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V. RECENT CASES OF INTEREST A. Charter Schools.

Renaissance Charter School, Inc. v. St. Lucie County School Board, Case Nos. 14-3267 and 14-4045RU (Fla. DOAH June 30, 2015). An approved charter for a new charter school provided that “[t]he [s]chool shall provide transportation to the [s]chool's students consistent with the requirements of” Sections 1006.21-1006.27 and 1012.45, Fla. Stat. The charter school commenced operations without providing to the sponsoring school board a plan for student transportation, instead submitting a “policy” informing prospective applicants of its intentions: The school would not offer regular school busing, and required enrolling parents to sign a “Parent Obligation Form” obligating them “[t]o provide transportation to and from the school for” their children. The sponsor rejected the “policy” as inconsistent with the charter contract and governing statutes. The charter school then filed a petition contesting the authority of the sponsor to require the school to offer regular school busing to all students residing more than two miles from the school. The sponsor replied with a counter-petition asserting breach of the charter contract and violation of the governing statutes. In a second petition, the charter school asserted that the sponsoring school board had an unadopted rule requiring regular school busing of all charter school students residing more than two miles from the school. Following a combined hearing on the petitions and counter-petition, the Administrative Law Judge (“ALJ”) entered a Final Order finding that the “Parent Obligation Form” constituted an “agreement or contract” for transportation between parents and the charter school. The ALJ held that (1) the sponsoring school board could not require regular school busing, (2) the charter school did not breach its charter school contract, (3) the school board does not have an unadopted policy on transportation, and (4) the school board’s policies on charter school transportation were invalid. Note: The school board has appealed the Final Order to the District Court of Appeal for the Fourth District of Florida.

B. Dress Codes and Uniforms.

Frudden v. Pilling, 742 F.3d 1199 [302 Ed. Law Rep. [21]] (9th Cir. 2014). Elementary school parents challenged a mandatory policy that required a uniform containing a written motto, “Tomorrow’s Leaders,” with an exception for nationally recognized youth organization such as Boy Scouts of Girl Scouts on regular meeting days. The District

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Court dismissed the complaint, which alleged that the policy unconstitutionally compelled speech about leadership, and improperly contained a content-based exemption. On appeal, the Ninth Circuit reversed and remanded for further review under the “strict scrutiny” standard, that is, to determine whether the policy was narrowly tailored to serve a compelling state interest. The Circuit Court contrasted the case with an earlier decision upholding a mandatory uniform policy that did not require shirts with an expressive message, and contained no content-based exception.

C. Education Records.

Bryner v. Canyons School District, 2015 UT App. 131, 351 P.3d 852 [319 Ed. Law Rep. [563]] (Utah App. 2015). The father of a student involved in an on-campus altercation with other students filed a complaint under the state’s public records law to compel the school district to produce a copy of a video-surveillance recording of the event. The district had determined that the video constituted an education record under FERPA, which would prohibit release without consent of the parents of other students shown on the recording. The trial court concluded that the video was an education record, that it contained personally identifiable information on other students, and that the school district should produce a redacted version, but only if the father paid the cost of redaction. On review, the Utah Court of Appeals affirmed the trial court’s ruling, finding that the video was an education record because it both contained information directly related to students, and was maintained by persons acting for the school district. The Court of Appeals also noted that when an education record contains information on more than one student, FERPA affords parents the right to inspect and review only that part of the record relating to their child. Redacting information on the other students, or securing the written consent of the other students’ parents, was therefore necessary, and charging the requesting parent for the required redaction was consistent with both FERPA and the state’s public records law.

D. Equity.

1. Doe v. Board of Education of Prince George’s Co., 605 Fed. Appx. 159 [318 Ed. Law Rep. [696]] (4th Cir. 2015) (per curiam). Parents of a fourth grade student enrolled in a public Montessori school filed suit alleging, among other claims, that the school board and principal had failed to protect him from sexual harassment by an older classmate in violation of Title IX of the Education Amendments of 1972. The parents first reported that the classmate had bullied and teased the

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student, and on at least one occasion had exposed himself to the student. These incidents were not always reported promptly, were much later alleged to include sexual assaults, and on investigation were determined to have possibly involved consensual activity. Although not strictly following the school board’s sexual harassment policies, school staff investigated and responded when made aware of the various complaints, and local police closed an investigation of the incidents with a finding that the elements of a sexual assault had not been shown.

The parents alleged a failure to protect the student from harassment, claiming

both sex discrimination under Title IX of the Education Amendments of 1972 and negligence under state law. After discovery by the parties, the District Court granted summary judgment for the defendants on both the federal Title IX and state law negligence claims. It rejected the parents’ efforts to use a U.S. Department of Education Office for Civil Rights (“OCR”) enforcement guidance that suggests a lower standard of proof, simple negligence, in peer sex harassment cases.

On appeal, the Fourth Circuit affirmed. To impute liability on an educational

institution under Title IX, the court noted, a claimant must show that the institution (1) had actual knowledge of the student-on-student sexual harassment and then (2) acted with deliberate indifference to the harassment. The Fourth Circuit agreed with the District Court’s finding that the school board’s response, despite its “procedural shortcomings,” was not clearly unreasonable as a matter of law. On the state law claims, the appellate court also agreed that given the “swift,” “substantial,” and “significant” response to the known incidents of harassment, there was no breach by the defendants’ of their duty to exercise reasonable care to protect the student.

2. Fennell v. Marion Independent School District, ___ F.3d ___ [___ Ed. Law.

Rep. [___]], 2015 WL 5944434 (5th Cir. Oct. 13, 2015). Three African-American siblings were subjected to student-on-student racial harassment, including racial epithets and slurs; a derogatory comment by an athletic director; and other incidents of a racial nature. The school district, which has policies prohibiting harassment, bullying, and racial harassment, responded to all of the incidents reported. It required employees to attend additional training on its discrimination, harassment, and bullying policies, which training was facilitated by the U.S. Department of Justice and provided by an outside organization not affiliated with the district. The district also required students to attend a special assembly led by the same organization on the same topics, but it refused to sign a resolution agreement provided by DOJ regarding the school’s policies.

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The parents filed suit in federal court against the school district, the athletic

director, and a softball coach, alleging violations of Title VI of the Civil Rights Act of 1964 (which prohibits race “discrimination under any program or activity receiving Federal financial assistance”) and the Equal Protection Clause of the Fourteenth Amendment. The complaint alleged both race discrimination and the creation of a racially hostile educational environment. The District Court granted the defendants’ motion for summary judgment as to all the claims.

The Fifth Circuit affirmed the lower court’s decision. The Title VI claim failed

because the parents had not raised a genuine dispute over whether the school district was “deliberately indifferent” to the student-on-student harassment—they had not shown that the district’s response to the harassment was “clearly unreasonable.” On the equal protection claims against the school district, the court held that the parents failed to present evidence that the school board itself, as the official policymaker, knew of any custom of race discrimination among employees or that the board condoned such practices. Regarding the equal protection claims against individual employees, the court found no evidence suggesting that the involved siblings had been subjected to “disparate treatment” on the basis of race.

3. Hill v. Cundiff, 797 F.3d 948 [321 Ed. Law Rep. [74]] (11th Cir. 2015). A

female middle-school student alleged that she was raped in a bathroom after school officials decided to use her as “bait” in a sting operation to catch a male student in the act of sexual harassment. The male student had been harassing girls at the school and soliciting them for bathroom sex. The alleged rape occurred in one school bathroom while the teacher’s aide who hatched the sting plan monitored a different bathroom.

The parents of the female student sued the school board and various school

officials and staff, alleging sexual harassment in violation of Title IX and various federal constitutional and state law claims. The District Court granted summary judgment for the school board as to all claims against it, including the claim filed under Title IX, and also granted summary judgment for most of the other defendants on most of the claims against them.

On appeal, the Eleventh Circuit affirmed much of the district Court’s decision, but

reversed and reinstated the Title IX claim against the school board and certain of the claims against individual defendants. Regarding the Title IX claim, the court concluded that the school board had “actual knowledge” of the male student’s

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harassment of female students (rejecting the Department of Justice’s position that the parents need only show that the student harasser posed a “substantial risk” to other students, the standard for staff-on-student harassment). The court also concluded that the school board was “deliberately indifferent” to that student-on-student harassment, which was “so severe, pervasive, and objectively offensive” that it deprived the victims of access to educational opportunities or benefits at the school.

Note: The school board has filed a petition asking that all of the judges in the

Eleventh Circuit review the decision, which was entered by a three-judge panel. E. Exceptional Student Education; Disability Rights.

1. Alboniga v. School Board of Broward County, No. 14-CIV-60085 (S.D. Fla. Feb. 10, 2015). The parents of a six year old student with multiple disabilities (cerebral palsy, spastic quadreparesis, seizure disorder, non-verbal, confined to a wheelchair, and requiring care and support for all aspects of daily living and education) secured a service animal to alert to the student’s seizures. The school board asked, among other matters, that the parents provide a handler for the animal. The parents sued, complaining that the school board’s position violated the Americans with Disabilities Act (“ADA”).

The service animal is tethered to the student’s wheelchair when at home and at

school. The District Court found that the only activity for which the student required accommodation from the school board was walking both the student and the tethered dog outside the school to urinate. Under the circumstances, the court concluded, the service animal was under the control of the student as the animal’s handler while it is tethered to his wheelchair, the school’s assistance to the student in leading the animal outside did not constitute care or supervision of the animal (for which the school may not be made responsible), and therefore the requested accommodation was not walking the animal but rather assisting the student in doing so. As so interpreted (essentially following a “Statement of Interest” filed in the case by the Department of Justice), the requested accommodation (that is, allowing the service animal with minimal restriction and no separate handler) was held reasonable.

2. D.A. v. Meridian Joint School District No. 2, ___ Fed. Appx. ___ [___ Ed. Law

Rep. [___]], 2015 WL 4071565 (9th Cir. July 6, 2015) (mem.). The parents of a child with Asperger’s Syndrome, a high-functioning form of autism, initiated a due process hearing after the school district determined that the student did not

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need special education services. Following a hearing, the state hearing officer entered a decision agreeing with the school district. On review, the District Court affirmed the hearing officer’s conclusion that, despite having Asperger’s, the student was not in need of special education services under the Individuals with Disabilities Education Act (“IDEA”).

On appeal, the Ninth Circuit affirmed, ruling that the student was not eligible for

special education services under the IDEA. The act defines “child with a disability” for whom its protections apply as one who both (1) has a listed impairment or disability and (2) “by reason thereof, needs special education and related services.” The court found that the student had benefitted from the general education curriculum, and determined that the hearing officer and the District Court had considered both academic and non-academic factors in concluding that the student, despite his autism, did not need special education services. The parents, the court ruled, had not met their burden of showing that this conclusion was erroneous or improper.

3. D.F. v. Leon County School Board, No. 4:13cv3 (N.D. Fla. Mar. 31, 2015).

After the school board updated a student’s individualized educational program (“IEP”), the child’s parent revoked consent to IDEA services. Based on federal administrative guidance, the board believed that the parent’s revocation also cut off any duty under Section 504 of the Rehabilitation Act (“Section 504”), but it continued to provide services it believed were needed except those that the parent specifically disapproved. The parent filed suit alleging that the school board had failed to provide services required by Section 504, and had retaliated against the student for the parent’s revocation of IDEA consent. The District Court granted summary judgment to the school board, finding that the student had failed to exhaust administrative remedies, the school board had acted in good faith in attempting to meet all IDEA and Section 504 requirements, and the school board had “fully accommodated” rather than retaliated for the parent’s revocation of consent.

The court pointed out that by not proceeding with an administrative appeal under

the IDEA, the student had bypassed a step that the statute requires before filing a civil action under Section 504, and that failure was fatal to the student’s claim. Concerning the substance of the Section 504 claim, the court found that the student had not shown that the school board had “intentionally violated, or was deliberately indifferent to” his rights, shortfalls that again were fatal to his claim. Finally, although noting that the federal guidance that the school board followed was not entirely accurate, the court held that the board had acted in good faith

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reliance upon the guidance, and therefore could not be liable for retaliation against the student.

4. M.O. v. New York City Department of Education, 793 F.3d 236 [320 Ed. Law

Rep. [77]] (2d Cir. 2015). Before their child ever attended school, the parents of a special education student filed a reimbursement action for a unilateral private placement under the IDEA, challenging the adequacy of the school proposed by the school district for the student. The parent’s due process complaint alleged that the student’s IEP was substantively inadequate, and also challenged the adequacy of the proposed placement school. The District Court upheld administrative rulings in favor of the school district, noting that evaluation of whether the child was offered a free appropriate public education (“FAPE”) must focus on the plan offered to the parents, not speculation that the school would not adhere to the plan, and denied tuition reimbursement.

Rejecting the District Court’s rationale, on appeal the Second Circuit nonetheless

affirmed on the ground that the parents’ challenges to the school were in fact attacks on the IEP rather than challenges to the school’s capacity to provide the services required by the IEP. The court ruled that because the IEP developed and offered by the school district provided FAPE, the parents were not entitled to tuition reimbursement.

F. Miscellaneous.

Wenk v. O’Reilly, 783 F.3d 585 [316 Ed. Law Rep. [602]] (6th Cir. 2015). Based upon information ostensibly provided by two teachers, a director of pupil services filed a child abuse report about a student’s father. The father had advocated strongly for changes in the student’s IEP, and there were discrepancies in testimony concerning what information had been provided by the teachers and what was reported to the child protection agency. The District Court dismissed the parent’s complaint alleging retaliation for the father’s advocacy. On appeal, the Sixth Circuit reversed and reinstated the action, holding that a report of child abuse, even if the report was not materially false and even if there was some evidence to support suspected abuse, “is actionable if the reporter actually made the report ‘at least in part’ for retaliatory motives.” Id. at 595 (emphasis in original). The court found that the parents had “presented ample evidence that [the reporting staff member] was motivated at least in part by a retaliatory motive to make the child abuse report about [the father].” Id. at 596.

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Note: A petition for certiorari (discretionary review) with respect to the Sixth Circuit’s decision is currently pending before the Supreme Court of the United States; the National School Boards Association has filed an amicus brief in support of review.

G. Negligence.

1. Limones v. School District of Lee County, 161 So.3d 384 [317 Ed. Law Rep. [1154]] (Fla. 2015). The parents of a high school athlete brought action against the school board for failure to apply an automated external defibrillator (“AED”) when the student collapsed during a soccer game. Cardiopulmonary resuscitation was performed by school staff, but although an AED was available at the field, it was not used. Emergency responders arriving a few minutes later used their own AED, but were unable to revive the student until 26 minutes after the initial collapse.

The student survived, but remains in a nearly persistent vegetative state and will

require full-time care for the remainder of his life. The Florida Supreme Court found that (a) the school board owed a duty to supervise the student, and once the student was injured, the board owed a further duty to take reasonable measures to come to his aid and prevent aggravation of the injury, (b) it is a jury question whether the school board breached its duty to the student resulting in the injury that the student suffered, and (c) the school board was not entitled to statutory sovereign immunity because it did not use or attempt to use the AED.

2. School Board of Miami-Dade County v. Martinez-Oler, 167 So.3d 451 [319 Ed.

Law Rep. [1145]] (Fla. 3d D.C.A. 2015). A high school student suffered a fractured eye socket when another student threw a book at him in class. The parent of the injured student filed suit alleging that the school board had been negligent in supervising the student who caused the injury. The trial court ruled that the school board had breached a duty to make available to the classroom teacher two prior disciplinary reports on the student who threw the book. Neither of the prior reported incidents involved injury to another student or to a staff member.

On review, the Third District Court of Appeal reversed, holding that the school

board did not have a duty to disseminate the prior disciplinary reports. The District Court noted that the school board had not made a determination that the teacher had a “legitimate educational interest” in the injuring student’s past behavior records, as required by FERPA in order to share the student’s records with staff members, finding that such determination was for the education agency,

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not the court. The court also pointed out that the records did not contain a history of aggressive behavior, finding that the injuring student’s “act was a random act of violence which [the teacher] could not have anticipated even if she knew” the contents of the student’s disciplinary reports. Id. at 455.

H. Speech; Expression.

Seegmiller v. School Board of Collier County, 2015 WL 3604608 (M.D. Fla. June 7, 2015). A resident attended a school board’s public meeting to address the board’s alleged misuse of power and permitting parents to choose the school district’s curriculum and textbooks. The board gave the resident three minutes to speak, but the chairperson interrupted him when he began to raise personal attacks against school board members, instructing him to keep his discourse to substantive issues. The resident objected to the interruptions, citing his free speech rights under the First Amendment. The school board attorney also intervened to reiterate that the board was not censoring his speech and that he should to stick to substantive issues instead of attacking board members personally. Believing the interruptions to have denied him a reasonable opportunity to express himself on matters of community interest, the resident filed suit in federal district court alleging, among other matters, violations of the First and Fourteenth Amendments. The District Court dismissed all of the federal claims and declined to exercise supplemental jurisdiction over state law claims. The court rejected his free speech claims, and also rejected his allegation of an equal protection violation based on a “class of one” theory because he failed to identify any similarly situated individual who was treated better than him. Note: An appeal of the District Court’s order has been filed with the United States Eleventh Circuit Court of Appeals.

I. Student Discipline and Searches.

1. Bell v. Itawamba County School Board, 799 F.3d 379 [___ Ed. Law Rep. [___]] (5th Cir. 2015) (en banc). A student posted a violent, off-campus, on-line recording criticizing and threatening coaches at his high school whom he accused of sexual misconduct with other students, intending the recording to reach the school community. Interpreting the language as threatening, harassing, and intimidating to its teachers, the school board disciplined the student, who sued alleging a violation of his First Amendment right to free speech.

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The District Court held that the board and other district staff acted reasonably. On appeal, the Fifth Circuit affirmed, stating that its “holding concerns the paramount need for school officials to be able to react quickly and efficiently to protect students and faculty from threats, intimidation, and harassment intentionally directed at the school community.” Id. at 393. The majority opinion concluded that (1) the student's recording did not reach to the level of posing a grave and unique threat to the physical safety of students; (2) conduct by a student that materially disrupts classwork or involves substantial disorder or invasion of the rights of others is not immunized by the First Amendment, and is subject to discipline when a student intentionally directs at the school community speech reasonably understood by school officials to threaten, harass, and intimidate a teacher, even when such speech originates off campus; (3) the student's recording threatened, harassed, and intimidated the coaches and was directed at the school community, and was thus subject to school discipline; and (4) the student's recording reasonably could have been forecast to cause a substantial disruption of the school.

Note: A prior decision by a panel of the Fifth Circuit had reversed the District

Court judgment. The en banc opinion, which is long and complex, vacated the panel decision, and generated multiple concurrences and dissents.

2. Burge v. Colton School District 53, ___ F.Supp. 3d ___ [___Ed. Law Rep.

[___]], 2015 WL 1757161 (D. Ore. Apr. 17, 2015). A middle school student frustrated at receiving a “C” from his health teacher, and a resulting grounding, vented on his personal Facebook page, including a statement that the teacher “needs to be shot.” The post, made from his home computer on a day school was not in session, was deleted within 24 hours at his mother’s instruction. About six weeks later, the parent of another student anonymously placed a printout of the post in the school principal’s mailbox. The principal suspended the student for three and one-half days. The teacher, although allegedly “scared,” “nervous,” and “upset” about the post, nonetheless accepted the school’s decision that the student return to her class.

The student filed suit charging violations of his First Amendment right to free

speech and Fourteenth Amendment right to due process. The District Court held for the student on his free speech claim but found for the school district on the due process claim. In analyzing whether the teacher’s reaction to the student’s comments could support a finding of material and substantial interference with school discipline justifying the suspension, the court concluded that the comments did not raise a serious threat of violence. Most importantly, the court found, the

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school took no action reflecting that it reasonably foresaw a threat: “Without taking some sort of action that would indicate it took the comments seriously, the school can not turn around and argue that [the student’s] comments presented a material and substantial interference with school discipline.” Slip op. at 6.

3. R.M.B. v. Bedford County School Board, 2015 WL 4092301 (W.D. Va. July 7,

2015) (mem.). An assistant principal discovered “crumpled leaves” in a middle school student’s backpack. A school resource officer (“SRO”) field tested the substance for marijuana on three separate occasions, and each time, the leaves tested negative. The SRO relayed this information to the assistant principal, who nonetheless brought disciplinary charges against the student in an effort to expel him from school. Criminal proceedings were also initiated against the student in juvenile court, where the SRO stated under oath to an intake officer that she found marijuana in the student’s possession. Meanwhile, in a school suspension hearing on the charge of marijuana possession, the student’s parents repeatedly asked the assistant principal for the results of the field tests conducted by the SRO, but the assistant principal refused to respond. The student was given a 364 day suspension for possession of marijuana.

Nearly two months later, when the student and parents appeared in juvenile court

to contest the criminal charge, the prosecutor advised them that the field tests were negative for marijuana, and that there was no other evidence of marijuana possession. The criminal charge was then dismissed. The parents then informed the school’s suspension official of the prosecutor’s remarks regarding the lack of evidence and requested that the student be allowed to return to school. The official, however, rejected their request., and the parents had no further recourse within the school’s administrative process because the deadline to appeal the school’s decision had already passed.

The parents filed suit against both the school board and various individual

officials, alleging violation of the student’s procedural and substantive due process rights, and malicious prosecution. The defendants moved to dismiss the parents’ complaint, but the District Court denied the defendants’ motions, ruling that the student had stated a valid claim for violation of his Fourteenth Amendment procedural due process rights, and had stated a valid state law claim for malicious prosecution. Regarding the due process claim, the court found that being threatened with a long term suspension gave the student a procedural due process right to exculpatory evidence that is within the school’s control.

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4. Sagehorn v. Independent School District No. 728, ___ F.Supp. 3d ___ [___ Ed. Law Rep. [___]], 2015 WL 4744482 (D. Minn. Aug. 11, 2015). An anonymous post on a “confessions” website asked whether a particular high school senior “did actually make out with” a named teacher at the student’s school. The student, who had no prior discipline history, did not create or maintain the website, but he responded to the anonymous post with a post of his own stating “actually yes,” which he meant in jest. The student’s post was made outside of school hours, not on school grounds, not at a school-sponsored event, and without use of any school property.

The student was suspended, recommended for a short-term expulsion, and the

matter referred to law enforcement for possible prosecution. Under threat of a lengthier expulsion if a hearing were requested, and being warned that any expulsion would jeopardize his early university acceptance, the student withdrew from school. The prosecutor ultimately found there was insufficient evidence to charge the student with a crime.

The student filed suit against, among others, the school district and several high

school staff members, alleging violation of his First Amendment free speech rights. The District Court denied the school defendants’ motion for judgment on the pleadings, concluding that (1) the student’s post was not obscene and therefore unprotected by the First Amendment, (2) having been made off-campus, the post could not be regulated by the school because it neither (a) constituted a “true threat” nor (b) was it reasonably calculated to reach the school environment and be so egregious as to pose a serious safety risk or other substantial disruption to the school, and (3) the off-campus post could not justify school discipline as vulgar, lewd, or plainly offensive on-campus speech. In refusing to dismiss the individual school defendants on qualified immunity grounds, the court found that the “general rule that schools may not regulate merely inappropriate out-of-school speech (as opposed to truly threatening or substantially disruptive speech) has been well-established for decades.” Slip op. at 31.