Court Cases Provide a written response to two legal case studies. Include implications and personal reflection, correct case citation, facts of case, and decisions rendered.
1 January 202 3 (64) LEGAL UPDATE FOR SCHOOL ADMINISTRATORS January 202 3 Johnny R. Purvis aka Doc* West Education Law Reporter April 28, 2022 — 398 Ed. Law No. 1 (Pages 1 – 564) – #9 May 12, 2022 — 398 Ed Law No. 2 (Pages 565 – 1175) – #10 The Legal Update for School Administrators is sponsored by: William Carey University School of Education And PREPS Inc., Dr. Chuck Benigno, Executive Director The Legal Update is a monthly update of selected significant court cases in the United States pertaining to school administration and general school district operations. It is funded and sponsored by William Carey University’s School of Education and PREPS Inc. If you have any questions or co mments about the selected cases and their potential ramifications, please contact Johnny R. Purvis by phone (601 – 310 – 4559) or email ( [email protected] ) or Dr. Chuck Benigno , PREPS Executive Director at William Carey University. Topics : – Abuse and Harassment – Civil Rights – Crimes – Desegregation – Health – – Injunction – Labor and Employment – Property and Contract – Religion – Searches and seizures – Torts 2 Topics : Abuse and Harassment University had sufficient notice that its deliberate indifference to se ** al harassment by a non – student guest could result in Title IX liability . Hall v. Millersville University (C.A.3 (Pa.), 22 F. 4 th 397), January 11, 2022. ( Please note : The case is a post – secondary school case but could well have implications within the public – school setting .) The United States Court of Appeals, Third Circuit held in a case where the parents’ of a female student (Karlie) who was killed by her boyfriend in a university dorm room must demonstrate the following: (1) To prevail on their Title IX se ** al harassment claim the plaintiffs (John and Jeanette Hall parents of Karlie Hall) must show the following : (A) the university received federal funds; (B) se ** al harassment occurred; (C) school exercised substantial control over the harassment and context in which it oc curred; (D) school had actual knowledge of the harassment; (E) school was deliberate indifferent to the harassment; and (F)harassment was so severe, pervasive, and objectively offensive that it deprived the student of her access to an educational opportuni ty or benefits provided by the school; and (2) Genuine issues of material fact as to whether the university exercised substantial control over the student’ s non – student guest and student’s private dorm room and whether university had actual notice of stud ent’s harassment by her guest, whether the university was deliberately indifferent to the student’s harassment, and was sufficiently severe and pervasive so as to deprive her benefit of her education. Note #1 : The Third Circuit remanded the case back to t he lower court. Note #2 : The female student was killed by strangulation and other traumatic injuries by her boyfriend in her dorm room at Millersville University. Karlie would bring her boyfriend into her dorm through a rear entrance that was used many times during his overnight visits. He was later convicted of third – degree murder. Allegations that educators’ “ inaction caused a se ** al assault ” of a student did not state a due – process claim under the “ state – created danger ”. Spruill as next friend of D.N.S. v. Bd of Educ. of Chicago (N.D. Ill., 544 F. Supp.3d 839), April 13, 2021. Note : “ state – created danger ” defined”: Exists when a state actor (teacher, principal, coach, custodian, or some other state employee) creates a danger that resulted in an in jury/death to a plaintiff (victim) On or about January 2020, plaintiff (high school male student) was se ** ally assaulted/harassed in one of Chicago’s high schools by another student with a history of such assaults. Neither Board nor individual defendants [high school principal, at least three (3) assistant principal, and dean of students took any action to remove the pe ** ert (student) from the regular high school setting, and all ha d knowledge of his previous se ** al assaults. The United States District Court, N.D. Illinois, Eastern Division held: (1) There are three (N=3) requirements for stating a claim under the “state – created danger” doctrine: (1) i n order for the due process clause to impose upon a state the duty to protect its citizens, the state, by its affirmative acts, must create or increase a danger faced by an individual; (2) the failure on 3 the part of the state to protect the individual from such a danger must be the proximate cause of the injury to the individual; and (3) because the right to protection against state – created dangers is derived from the substantive component of the “Due Process Clause” (14 th Amendment), the state’s failure to protect the individual must shock the conscience . The United States District Court, N.D. Illinois, E astern Division went on to state the following: Plaintiff, as next friend of the minor student, (1) failed to assert an affirmative act by the city board of education and school administrators that increased the danger of se ** al assault that student faced from another student and, thus, failed to state a claim under Section 1983 (civil rights law) for the violation of the student’s substantive due process rights under the “state – created danger” doctrine; (2) plaintiff “ merely alleged ” that board of educati on and school administrators stood idly by (“failed to act”) while se ** al violence became prevalent in the city of Chicago’s public schools generally and at the school the student attended in this particular case. Civil Rights Se ** al assault was harassment sufficiently severe to create a hostile environment under Title IX, even if university lacked prior warning of the harassment. Doe v. Morgan State University (D. Md., 544 F. S upp. 3d 563), June 21, 2021. ( Please note : The cas e is a post – secondary school case but could well have implications within the public – school setting .) The United States District Court, D., Maryland held that the se ** al assault of a public university female student (full scholarship) by another member (m ale) of the university’s track team had a concrete and negative “effect” on the female student’s education or access to school resources. In addition, the se ** al assault was harassment suffici ently severe or pervasive to create a “hostile environment”, thus satisfying an element of the student’s Title IX discrimination claim against the university. This was despite the university’s argument that the harassment had occurred before the universit y had knowledge of it and therefore the student could not hold the university accountable for the assault. The female student was an award – winning runner on the university’s track team, but after the se ** al assault the student did not compete again, recei ved a failing grade in one class, and began experiencing panic attacks. Crimes Juvenile’s statement that “everyone should just die” made in hallway of a vocational high school shortly after a mass school shooting was not a true threat . Interest of J.J.M. (Pa., 265 A. 3d 246), October 20,2020. The Supreme Court of Pennsylvania held t hat a 14 – year – old male student juvenile’s statement that he did not “think people deserve to live and everyone should die” made in a hallway of a vocation high school was not a “true threat,” and, therefore, juvenile’s adjudication for “terroristic threats ” violated the U.S. Constitution’s First Amendment’s free speech provision . Although the juvenile’s horrible/gruesome view might have been offensive to some students, the statement expressed an opinion , and the student who heard the juvenile make the statement did not find the statement troubling enough to warrant an immediate report. 4 Desegregation School district failed to achieve unitary status regarding the assignment rates of black versus white students between schools. Thomas v. School Bd. St . Martin Parish (W. D. La., 544 F. Supp. 3d 651), June 21, 2021. Note : Definition of terms: De jure segregation is the separation of groups of people by law or policy. De facto segregation is the separation of groups of people that happen even though it is not required or sanctioned by law or policy , typically happens due to housing patterns . Unitary status is when a school district has been found to have complied with a desegregation order “in good faith ” and therefore the school district could be released once and for all from court oversight. The United States District Court, W.D. Louisiana, Lafayette Division held that St. Martin Parish School District was subject to desegregation decree and consent order failed to eliminate vestiges of prior de jure racial segregation to the extent practicable. (1) Therefore, the school district failed to achieve “unitary status as so pertaining to student assignment. Persistent white student racial identifiability of elementary school resulted directly from the fact that the school district intentionally built an elementary school in white section of town for white students and black racial identifiability elementary school in the same school zone for black student s. The two elementary schools were close enough to transport students between corresponding areas, and the demographics did not meaningfully change independently of prior de jure segregation. (2) School district failed to eliminate vestiges of prior de jure segregation to the extent practicable with respect to racial disparity in students’ selection of graduation pathways that prepared them for college versus workforce. Thus, the school district was not entitled to finding of unitary status with respect to graduation pathways, where after entry of the consent order requiring district to reduce graduation – pathways disparity between white and black students to within 5% disparities for each high school within the school district . The disparities remained at least 7% demonstrating that vestiges of prior de jure segregation remained, and school district had not taken steps to reduce disparities as agreed. Health The school district’s plan for virtual and in – person learning during the COVID – 19 pandemic did not violate the rights of students or their parents. Borishkevich v. Springfield Public School Board of Educ. (W.D. Mo., 541 F.Supp.3d 969), May 27, 2021. The U nited States District Court, W.D. Missouri, Southern Division held that: (1) School district’s requirement that students attend public schools virtually for part of the school week under a plan adopted by the school district in response to COVID – 19 pandemi c did not deprive students’ parents of a constitutionally recognized liberty or property interest (14 th constitutional amendment of the U.S. constitution) in their children’s education. Therefore, the plan did not violate parents’ procedural due process r ights (14 th constitutional amendment of the U.S. constitution). Parents’ constitutional protected interest in controlling their children’s education was not unqualified, and parents who chose to send their children to public school, rather than home – schoo l children or sending them to private school, lacked constitutional interest in 5 micromanaging their children’s education in public schools or otherwise preempting the educational process . (2) School district’s requirement that students attend public schoo l virtually for part of the school week under the plan adopted by the school district in response to COVID – 19 did not deprive students of property interest , created by Missouri law as so pertaining to receiving a free public education. Therefore, the plan did not violate students’ procedural due process rights . State law did not require public school to provide a free education in a manner that students or their parents desired , and provision of partially virtual education was still provision of free public education . Injunction Rule requiring student to wear face masks on campus had a rational basis , and thus opponents of the rule did not show or demonstrate substantial likelihood of success. W.S. by Sonderman v. Ragsdale (N. D. Ga., 540 F. Supp. 3d 1215), May 12, 2021. The United States District Court, N.D. Georgia, Atlanta Division held that County – school – district (Cobb County School District) rule requiring all students to wear face coverings while on school campus had a rational basis , as requir ed by “equal protection”, and thus students seeking a temporary restraining order (T R O) failed to establish a substantial likelihood of succeeding on their claim that the rule violated the equal – protection clauses of both the state and federal constitution s (14 th Amendment). The purpose of the mask mandate was to reduce the spread of COVID – 19 among students and school district employees , which was a legitimate government purpose. The wearing of masks was based on guidance from public health authorities th at “ showed or demonstrated a rational connection ” between the mask mandate and its intended goal of slowing the spread of the COVID – 19 virus. Labor and Employment The lump – sum payment that a public school district made to settle a principal’s age – discrimination claim did not constitute retirement – covered compensation. Whalen v. Public School Employees’ Retirement Bd. (Pa., 265 A.3d 570), December 22, 2021. The $15,000.00 lump – some payment that a public school district made to settle a principal’s age – discrimination claim did not constitute “retirement – covered compensation” that should be included in principal’s retirement benefit calculation under the state of Pennsylvania’s Retirement Code. The parties’ settlement agreement stated that the $15,000.00 payment was a “salary enhancement” to be paid as a full and final settlement and to effect compromise of a disputed claim . The agreement failed to mention whe n the “salary enhancement” was earned, which made it impossible for the Public – School Employee’s’ Retirement System (PSERS) to treat the payment as “compensation” even if it wanted to do so because retirement – covered compensation was credited in the school year in which it was earned and not paid. The parties’ agreement did not reference or incorporate a standard salary schedule, and this was crucial because the retirement code explicitly excluded from the retirement calculation any remuneration not based on employee’s standard salary schedule. 6 Public school teacher did not demonstrate that school board’s termination for alleged threats to harm herself and students was pretext for reverse race discrimination. Martcheva v. Dayton Bd. of Educ. (Ohio App. 2 Dist., 179 N.E.3d 687), October 1, 2021 . The Court of Appeals of Ohio, Second District, Montgomery County held that there was no evidence that school board employer’s reason for terminating employee’s teaching contract, namely that multiple students accused the former schoolteacher of making statements related to bringing a shotgun into the classroom and doing harm to students and herself, was pretext for unlawful retaliation for employee’s protected activity in filing two complaints with the Ohio Civil Rights Commission (OCRC) alleging race discrimination and retaliation. Note : The former teacher taught in a public – school district’s Charity Adams Earley Academy for Girls an d was teaching fourth – grade language arts and social studies. On about October 1, 2018, she told her class of fourth grade girls that if they would not stop talking she wanted to do the following: (1) strangle a particular student, (2) she was going to br ing a shotgun to school to shoot herself in the head, and (3) that if a particular student was her child she would whoop that girl so bad she would go to jail. Property and Contract s Insurance company that issued bonds to general contractor was not requir ed to pay subcontractor for work performed under an “unsigned change orders”. JD’s Asphalt Engineering Corp. v. Arch Ins. Co. (Fla. App. 3 Dist., 329 So. 3d 165), October 6, 2021. Insurance company, which issued the bond posted by the general contractor w ho performed the construction work for the school district , was not required to pay asphalt subcontractor for the work performed pursuant to certain change orders where subcontractor and general contractor expressly required all change orders to be in wri ting and signed . The change orders underlying the subcontractor’s claim were unsigned and unauthorized . Note : J.D.’s Asphalt Engineering Corp. (general contractor) sued Arch Insurance Company for $11,606.63 in retainage payment (portion of a contract total price that is withheld until the project is completed) and $19,890.00 (plus sales tax) in change order. Religion The district court grant ed summary judgment sua spon te (Latan term: meaning “of one’s own accord or voluntarily”) in favor of student group on its free – speech (1 st Amendment) and equal protection (14 th Amendment) claim. InterVarsity Christian Fellowship/USA v. Bd. of governors of Wayne State University (E. D. Mich., 542 F. Supp.3d 621), June 1, 2021. Note : The case is a post – secondary school case but has implications for public elementary and secondary school. The United States District Court, E.D. Michigan, Southern Division stated that on the motion for reconsideration filed by a state university and the university administration, whom the district court had enjoined from revoking the religious group’s status as a registered student organization based on the group’s religious criteria for student leaders hip selection . U niversity forfeited (canceled / scrubbed) an argument that an in junction was over – broad. There was no 7 reason the university could not have presented an argument for a narrower injunction prior to motion for reconsideration. In their motion for reconsideration of their brief and at the hearing, the university never mentioned the scope of a possible injunction or offered an alternative language . I t should have been abun dantly clear that, if the court granted summary judgment for the group , the university would be prohibited from revoking the group’s status based on its application of religious criteria to select their leaders. Searches and Seizures Police officer’s use of pepper spray in restraining and detaining a high school student was not excessive force in violation of the Fourth Amendment. Heard v. Detroit Public Schools Community Dist. (E. D. Mich., 540 F. Supp. 3d 727), May 18, 2021. The United States District Court, E.D. Michigan, Southern Division held that a male police officer (assigned to the high school) use of pepper spray, in the course of restraining and detaining a female high school student for allegedly disruptive behavior at school, did not constitute excessive force in violation of the Fourth Amendment, and therefore the officer was entitled to qualified immunity as to his use of pepper spray in the student’s legal action under Section 1983 (U.S. civil rights law). Video surveillance (5 minutes long) showed that the student was actively resisting the officer and engaging in disorderly conduct at the time the officer used pepper spray. Furthermore, the student was visibly resisting, kicking, and refused to stand up in atte mpting to make her detention more difficult. The student’s resistance constituted an immediate threat to other school officials who were nearby . Note : The incident occurred on the school’s second floor’s stairs (student’s elevator pass had expired and s he could not ride the elevator ) during the changing of classes. The assistant principal tried to calm her down, but she put on her headphones to tune him out. 8 Torts Student’s parents’ state – law claim arising from student’s fatal fall out of a moving school bus was preempted by federal law . Estate of Miranda v. Navistar, Inc. (C.A.5 [Tex.], 23 F.4 th 500), January 12, 2022. The Untied States Court of Appeals, Fifth Cir cuit held that federal safety standards promulgated under the National Traffic and Motor Vehicle Safety Act, regulating emergency – exit doors of school buses, resulted in a conflict preemption of (case dismissed) student’s’ parents’ state – law claim for prod uct liability premised on school bus manufacturer’s failure to include an automatic speed – activated locking mechanism on the bus’s rear emergency exit. The case arose from a thirteen – year – old male student death when he opened the rear emergency – exit door of a school bus while it was traveling at a highway speed. Federal safety standards required that such doors allow manual release by a single person and that the release mechanism operated without the use of remote controls or tools. Thus, it would have been impossible to include an automatic speed activated lock and comply with federal standards. Thanks for allowing me to serve. Strength and honor An Old Retired Teach – Cop * Note : Johnny R. Purvis retired August 2003, (30.5 years) from the University of Southern Mississippi (USM) as a professor in the Department of School Administration, Director of the Education Service Center in the College of Education and Psychology, Executive Director of the Southern Education Consortium, and Director of the Mississ ippi Safe School Center at the University of Southern Mississippi. After retiring from USM, he was hired as a professor in the Department of Leadership Studies at the University of Central Arkansas (UCA) in August 2003, and retired December 31, 2013. He also served as teacher, coach, school administrator, and member of a county school board in Mississippi. In addition, he retired as a law enforcement officer having served in both Mississippi and Arkansas. He can be reached at the following phone number: 601 – 310 – 4559 or e – mail: jpurvis@uca. edu.
Court Cases Provide a written response to two legal case studies. Include implications and personal reflection, correct case citation, facts of case, and decisions rendered.
1 February 2023 (65) LEGAL UPDATE FOR SCHOOL ADMINISTRATORS February 202 3 Johnny R. Purvis aka Doc* West Education Law Reporter May 26 , 2022 — 39 9 Ed. Law No. 1 (Pages 1 – 433 ) – # 11 June 9 , 2022 — 39 9 Ed Law No. 2 (Pages 435 – 907 ) – #1 2 The Legal Update for School Administrators is sponsored by: William Carey University School of Education And PREPS Inc., Dr. Chuck Benigno, Executive Director The Legal Update is a monthly update of selected significant court cases in the United States pertaining to school administration and general school district operations. It is funded and sponsored by William Carey University’s School of Education and PREPS Inc. If you have any questions or comments about the selected cases and their potential ramifications, please contact Johnny R. Purvis by phone (601 – 310 – 4559) or email ( [email protected] ) or Dr. Chuck Benigno , PREPS Executive Director, William Carey University. Topics : – Abuse and Harassment – COVID – 19 Cases (a variety of issues) – Immunity – Security – Torts 2 Topics : Abuse and Harassment College football player’s off – campus residence was context for Title IX purposes, for physical assault of female student. (9 th Circuit Court of Appeals granted summary judgment to the University of Arizona ) Brown v. State (C.A.9 [Ariz.], 23 F. 4 th 1173), January 25, 2022. Why select this case : Yes, this is a postsecondary case , but it has implications for elementary and secondary schools, especially if verbal harassment, physical assault, or se ** al assault occurs between students who are enrolled and attend a given school within a school district and in an off campus and/or non – school sponsored activity. Setting : University of Arizona male football player se ** ally and physically assaulted a female student who also attended the University of Arizona. The assault occurred at the football player’s private off – campus residence. A fter the assault occurred, the female victim brought legal action against the university under Title IX seeking damages for the student – on – student physical harassment by the forementioned male student who was also a student at the same university. Note : Prior to this incident the male student football player had physically assaulted two other female students. The court’s ruling : The United States Court of Appeals, Ninth Circuit stated the following: ( A ) Because Title IX addresses s * x discrimination that occurs “under” the operation of an educational institution that receives federal financial assistance, for the educational institution to be liable for student – on – student harassment, the harassment must tak e place in a context subject to the educational institution’s substantial control . Furthermore, the postsecondary institution is not liable under Title IX for others’ misconduct that it cannot remedy because it lacks notice and the ability to take corrective action . ( B ) A plaintiff asserti ng a Title IX claim must establish five (N=5) elements: (1) the school must exercise substantial control over both the harasser and the context in which the known harassment occurred; (2) the plaintiff suffered harassment that is so severe, pervasive, and objectively offensive that it can said to deprive plaintiff of access to school or benefits provided by the school; (3) school official with the authority to address alleged discrimination and to institute corrective measures on school’s behalf had actual knowledge of the harassment; (4) school acted with deliberate indifference to harassment, such that school’s response or lack thereof was clearly unreasonable in light of known circumstances; and (5) school’s deliberate indifference subjected plaintiff to harassment. Former high school female student stated a claim against school district for common law failure to report an alleged se ** al abuse by a high school male teacher (occurred from 1974 to 1977). Visiko v. Fleming (N.Y.A.D. 4 Dept., 158 N.Y.S.3d 48 3), November 19,2021. A former student stated a claim against a school district for a common – law failure to report by alleging that she was se ** ally abused by a teacher while attending high school (East High School in Rochester City School District, New Y ork) . Instances of se ** al abuse by the teacher occurred on school grounds during school hours when school district officials were in a position of “in loco parentis” to her. Furthermore, school officials knew or should have 3 known that the teacher was se ** ally abusing the minor student. School officials failed to notify law enforcement or other appropriate governmental agencies which resulted in her injuries. High school teacher’s use of transgender students’ last names only as an accommodation to his r eligious beliefs created an undue hardship for a public school . Kluge v. Brownsburg Community School Corp. (S.D. Ind. 548 F. Supp. 3d 814), July 12, 2021. The United States District Court, S.D. Indiana, Indianapolis Division stated (1) Teacher’s use of st udents’ last names only as an accommodation to his religious belief that it would be sinful to refer to transgender students by their preferred name s and pronouns created an undue hardship for a public school district by interfering with its ability to pro vide an education to all students and conflicting with its philosophy of creating a safe and supportive environment for all students . The “last – name – only” accommodation resulted in transgender students feeling targeted and uncomfortable, and others found it insulting and offensive . (2) There was no evidence of a causal connection between the teacher’s protective activity of requesting an accommodation for his religious beliefs , and his resignation from employment with the public school corporation, as wo uld support the teacher’s claim against school for retaliation under Title VII. The school district granted the teacher’s requested accommodation to address students by their last names only to avoid complying with school policy that students be addressed by their preferred names. The school eliminated the accommodation because of complaints about it but allowed the teacher to finish the school year and the school offered letters of recommendation to the music teacher to him find a new position . Evidence supported granting of leave to serve a late notice of claim * upon school district in action alleging school district failed to prevent bullying and harassment . Christopher M. v. Boquet Valley Cent. School Dist. (N.Y.A.D. 3 Dept., 159 N.Y.S.3d 536), October 15, 2021. * A provision in a liability insurance policy requiring the insured to promptly notify the insurer in the event that a claim is made against the insured. New York Supreme Court, Appellate Division, Third D epartment, New York held that Evidence supported trial court’s finding that school officials/school personnel had knowledge of the harassment and bullying incidents gave rise to claims for negligent supervision and intentional infliction of emotional distr ess that was asserted by students and members of the track team through student plaintiff’s father, in support of its decision to grant leave to serve late notice of claim upon the school district. The record contained a letter from student’s mother addressed to school district’s athletic coordinator and school district superintendent detailing instances of harassment. In additi on, there was a follow – up letter indicating that alleged bullying was discussed in a meeting with the superintendent , athletic coordinator, and track coach. Furthermore, there was evidence that students complained to a faculty and track coach about “incid ents” referenced in the letter. 4 COVID – 19 (a variety of cases ) ( Home School ) Children’s immediate enrollment in a public school was in their b est interest absent evidence that their mother (mother and father shared joint custody ) was competent to teach them. D.R.D. v. J.D.D. (N.Y. Sup., 158 N.Y.S.3d 549), November 2, 2021. The Supreme Court, Monroe County (state of New York) held that absent evidence that children were obtaining an “age – appropriate schooling or instruction” and t hat mother had the pedagogical competence to instruct children, children’s immediate enrollment in public school was in their best interests , on the order to show cause brought by the children’s father . After the children’s mother unilaterally decided to home school the children. The mother offered no evidence of her employment , college degree, experience as a teacher, or any educational training. Furthermore, the mother provided no evidence for her assertion that mask – wearing required by the public schools in response to COVID – 19 pandemic was unhealthy , there was no evidence that children participation in school activities or were given such an opportunity. In addition, the father’s custodial rights were violated . ( Educational Malpractice – university setting ) Student’s claims against university, arising from education moved online in response to COVID – 19, were not barred by educational malpractice doctrine. Michel v. Yale University (D. Conn., 547 F. Supp. 3d 179), July 7, 2021. The United States District Court, D. Connecticut stated that student failed to state a claim for a breach of contract against university (Yale) after the university transitioned from in – person teaching to virtual instructio n (teaching) in response to the COVID – 19 pandemic. The university undergraduate regulations provided a “suspension provision” which explicitly reserved the university’s right to temporarily suspend, at its discretion and judgment, its operations in respon se to emergencies, specifically citing “public health” concerns being among emergencies that might require suspension of operation. Thus, the university decided to suspend in – person education in light of the COVID – 19 pandemic which represented an exercise of its administrative authority as a university, and such authority could not constitute a breach of authority. ( Health ) Mask mandate generally requires masks in schools to COVID – 19 “could not be justified” under the regulation governing disease control measures. Corman v. Acting Secretary of Pennsylvania Dept. of Health (Pa., 266 A.3d 452), December 10, 2021. Note : Many y ears ago, a relatively old and very experienced school lawyer from Texas shared with me a very good piece of advice and I have never forgotten it and use it very often) : W atch (be very attentive to) those cases that come out of Pennsylvania ! The Supreme Court of Pennsylvania held that “Mask mandate” requiring most individuals to wear facial coverings while inside schools as a means of controlling the spread of COVID – 19 could “ not be justified under “ catchall provision ” in regulations governing disease con trol measures , directing the Department of Health or local health authority to take “any other disease control measure” when necessary to protect the public from the spread of 5 infectious diseases. Catchall provision “limit” other available control measure s to those appropriate for surveillance of a disease, which meant continuing scrutiny of all aspects of occurrence and spread of the disease that were pertinent to effective control. Masks were a general “ prophylactic measure ” (preventive measure, treatment, or device) that provided no means by which scrutinize or closely supervise the occurrence and spread of COVID – 19 or any disease. Immunity High school principal and counselor were not entitled to “qualified immunity” for allegedly conducting two strip searches of a minor female student, in a Section 1983 (civil rights, 4 th Amendment, and Fourteenth Amendment) unreasonable search claim. T.R. by and through Brock v. Lamar County Bd. of Educ. * (C.A. 11 [Ala.], 25 F. 4 th 877), February 4, 2022. * Not Lamar County, Mississippi Female high school principal and female counselor were not entitled to qualified immunity from liability for allegedly conducting two (N=2) strip searches of a 14 – year old female student based on “suspicion” that she possessed marijuana. The defendants “established reasonable suspicion” that the female student possessed marijuana, after they found marijuana seeds , rolling paper, two lighters, an d assortment of pills, and other drug paraphernalia in the student’s backpack. The United States Court of Appeals, Eleventh Circuit, stated that the student’s Fourth Amendment rights were violated , as so pertaining to an unreasonable search claim . The search of the student was unjustified at its inception and there was no threat that the student was passing drugs to other students, or that she otherwise posed a danger to herself or others. Evidence clearly established that the searches “were unreasonable in scope.” The female student was “stripped search ed” twice by school officials. The first search was conducted in a room with only the female high school principal and female counselor . The student (TR) was asked to remove her clothing, lift her breasts, and bend over for a inspection – no drugs were fo und. The second search occurred in the counselor’s office with her mother and sister present and was conducted by the same two school officials. She was again asked to remove her clothing, which T.R. submitted to the request; however, she was standing in front of the door (with a window) that led into the school counselor’s office from a public hallway. At the time of the search, TR was on her menstrual cycle which made her feel “humiliated” and embarrassed. 6 The track – and – field coach for a middle scho ol did not act with gross negligence when he threw a shot put toward the student during tryouts. Spearman v. Shelby County Bd. of Educ. (Tenn. Ct. App., 637 S.W.3d 719), September 16, 2020. Middle school track – and – field coach for middle school did not commit intentional torts of assault and battery when he threw a shot put toward the student (12 year old 6 th grader) during tryouts, as supported conclusion that section of Governmental Tort Lia bility Act (GTLA) waiving sovereign immunity regarding negligent acts and omissions applied to action against county school system and board of education to recover damages regarding injuries that student sustained when shot put hit the student’s head. Th e coach did not intend to strike any student , but solely intended to demonstrate to students how to properly throw the shot put. In addition, the school system and board of education’s own investigation concluded that the coach did not act intentionally. Note : Plaintiff awarded $63,858.69 for medical bills and $200,000 in compensatory damages. Security Training – or – experience required for school personnel to be armed while on duty applied to teachers, administrators, and other staff members. Gabbard v. Madison Local School Dist. Bd. of Educ. (Ohio, 179 N.E.3d 1169), June 23, 2 021. The Supreme Court of Ohio held that training or experience required in state statute prohibiting a school from employing a person as a special police officer, security guard, or other position in which such person was armed while on duty unless the person had satisfactory completed basic pea ce officer training or had at least 20 years of experience as a peace officer applied to school employees , including teachers, administrators, administrators, or other staff members, who are armed while on the job , and not only to employees who served in s afety or security positions that inherently required employees to be armed. The statute did not tie application of training or experience requirement to duties of employee’s position. The General Assembly could have expressed limited statute to those emp loyed in a police capacity but did not. Another aspect of Ohio’s law : The law prohibits a school district from employing a person who goes armed while on duty in his or her job unless the employee has satisfactorily completed an approved basic peace – offi cer – training program or as 20 years of experience as a peace officer. Torts Department of Education failed to seek lower interest rate on damages verdict before judgment was entered warranted a 9% presumptive (believed to be true – [probably]) interest ra te. Yvonne Y. v. City of New York (N.Y.A.D. 1 Dept., 158 N.Y.S. 3d 60), November 18, 2021. Appellate Division, First Department of New York held that the New York Department of Education failed to seek a lower interest rate on damages verdict against it before judgment was entered into in high school student’s negligence suit arising from severe burns he sustained 7 after he was set on fire during a chemistry demonstration at a public high school warranted the trial court’s decision to decline to depart from presumptive 9% interest rate, under the doctrine of laches ( a court denies relief to a claimant who has unreasonably delayed or been negligent in asserting the claim , when that delay or negligence has pr ejudiced the party against whom relief is sught. ) Had the Department formally moved to compute interest on the verdict at a lower interest rate than 9% before judgment was entered, instead of waiting until 48 days after the student noticed his judgment fo r settlement and only one day before the court signed the student’s proposed judgment, student would have had an opportunity to submit proof to the contrary and the court could have ordered a hearing if necessary. Note #1: Plaintiff awarded $29,585,000 m illion for past pain and suffering and $29,585,000 for future pain and suffering. Note #2: The youngster, then 16 years old, suffered catastrophic physical injuries, with psychological and emotional sequelae (aftereffect) when he was set on fire during a chemistry demonstration at a New York public high school he attended as a student. The physical injuries included, among other things, third degree burns to 31% of the young man’s body, mainly on his face, ears, neck, arms, hands , and corneal abrasion to his right eye. The records demonstrate that the student never lost consciousness. Within the first 24 hours of his hospital admission immediately following the accident, 38 pounds of fluid were pumped into his body in an attempt to provide adequate fluid replacement to his damaged tissue (31% of his skin was burned away) , and he was placed in a n induced coma for three days. Note #3: Despite stopping and rolling in a futile attempt to extinguish the fire, the student said that he “felt trapped in his bod y” and “completely helpless. ” Note #4: The young man further described how, upon being released from the hospital (2 month stay), his confidence and self – esteem plummeted. The student is nearsighted, developed a coping mechanism of removing his glasses while in public so that he could not see others’ reactions to his appearance. Alleged defamatory statements made by school officials regarding investigation of former teachers and hazing were an issue under qualified privilege . Weaver v. Deevers (Ohio App. 11 Dist., 11 Dist., 180 N.E.3d 619), October 25, 2021. Former teachers, joined by their spouses, filed legal action against parents of students, school board, superintendent, assistant superintendent, and school board president for defamation, intentional infliction of serious emotional distress, civil conspiracy, and loss of consortium, following affirmance of teachers’ unsuccessful challenge of the suspension and termination of teachers ’ positions for misconduct related to alleged hazing at b and camp . The Court of Appeals of Ohio, Eleventh District, Portage County held that alleged defamatory statements made by superintendent and school board president regarding an investigation of former teachers in relation to alleged hazing incidents at a band camp were issued under occasions of qualified privilege . School board, superintendent and school board president had a duty to ensure the safety and welfare of students in the school district . Furthermore, the statements at issue were communicated t o parents in the school district to further their corresponding interest in the safety and welfare of their children, and teachers of fered no evidence that the statements were not made in good faith or were made with actual malice. Note : The incident tha t generated t he case focused on the following incident s and concern s : The nature of the allegations is that the band camp ha d a culture of harassment, intimidation, teasing, and public humiliation that occurred during the 2016 band camp. Of specific conc ern were the senior skit night, the throwing of students into a lake by seniors, the 8 “great swami” skit performed by school staff members, the percussion section “stitch – n – b ** ch” skit, and the band camp salon skit. Thanks for allowing me to serve. Strength and honor An Old Retired Teach – Cop * Note : Johnny R. Purvis retired August 2003, (30.5 years) from the University of Southern Mississippi (USM) as a professor in the Department of School Administration, Director of the Education Service Center in the College of Education and Psychology, Executive Director of the Southern Education Consortium, and Director of the Mississippi Safe School Center at the University of Southern Mississippi. After retiring from USM, he was hired as a professor in the Dep artment of Leadership Studies at the University of Central Arkansas (UCA) in August 2003, and retired December 31, 2013. He also served as teacher, coach, school administrator, and member of a county school board in Mississippi. In addition, he retired a s a law enforcement officer having served in both Mississippi and Arkansas. He can be reached at the following phone number: 601 – 310 – 4559 or e – mail: [email protected] .