Moulton, Teacher Convicted of Assault on Students, Wins Right to Return to Classroom in Morton, Washington

Wed, 01 Sep 2010 21:26:15 GMT

In September 2009, teacher Michael Moulton was convicted on four counts of Assault against his own students in the Morton School District and served 16 days in a county jail. But Moulton’s termination has been overturned, and Moulton is free to return to the classroom. According to the Seattle Times, Moulton was scheduled to return to work on Monday, August 30, 2010, but he has called in sick this week as parents continue to protest his return.

The story behind Moulton reaches back to 1997, when he was first reprimanded for inappropriate interactions with female students. Over the years, Moulton was cited for rubbing shoulders, backs and arms, hugging female students from behind, grabbing a girl’s side, petting a girl’s shoulder, pulling a girl’s hair, and slapping a boy on the back of the head. In June 2008, one student filed a complaint for damages against the district and Moulton.

In the fall of 2008, Moulton was placed on administrative leave, without pay. A district investigation determined that while Moulton’s conduct was not sexual in nature or intent, it violated standards of conduct, and further that Moulton had falsely denied the fact that several students had asked him to stop. In November 2008, the Morton Police Department started an investigation, which lead to a charge of 8 counts of Assault. Moulton pled guilty to 4 counts and served 16 days in jail.

In March 2009, Morton School District imposed a 12-day suspension on Moulton as punishment. In October 2009, the Morton School District issued a letter to Moulton declaring that he had been terminated for probable cause. However, after Moulton challenged his termination, an administrative hearing officer determined that Morton School District was already aware of all offending conduct at the time of the March 2009 suspension, and therefore Morton’s termination decision improperly punished Moulton twice for the same offenses. On that basis, the hearing officer overturned Moulton’s termination and allowed him to return to his Morton classroom.

U.S. District Court Rules that Employees' Social Networking Sites Are Discoverable in a Sexual Harassment Suit against Employer

Mon, 16 Aug 2010 14:05:28 GMT

In Equal Employment Opportunity Commission v. Simply Storage Management, L.L.C. and O.B. Management Services, 2010 U.S. Dist., LEXIS 527661, (“E.E.O.C. v. Simply Storage”) the United States District Court, Southern District of Indiana, was asked to decide a basic discovery issue in a novel context when the parties to this sexual harassment suit failed to agree on whether or not two claimants must produce internet social networking site (SNS) profiles and other communications from their Facebook and My Space accounts.

In this case, Simply Storage sought to discover from two employees claiming sexual harassment against their supervisors, one of whom claimed severe emotional distress and the other who claimed to suffer from depression and post traumatic stress disorder, all photographs and videos posted to their Facebook and My Space accounts, electronic copies, or alternatively hard copies, of their profiles which includes updates, messages, wall comments, causes/groups joined, activity streams, blog entries, blurbs, comments and applications. The EEOC objected to production on the grounds that the request was overbroad, not relevant, unduly burdensome, and improperly infringed on privacy and compliance would harass and embarrass the claimants. Simply Storage defended the request arguing that the claimants’ had put their emotional health at issue implicating all their social communications.

The Court ruled that the EEOC must produce relevant SNS communications in accordance with its guidelines noting first that SNS content is not shielded from discovery simply because it is locked or private. The Court found it reasonable to expect severe emotional or mental injury to manifest itself in some SNS content and determined that the scope of relevance is any profiles, posting, messages, photographs or videos etc. that reveal, refer or relate to any emotion, feeling or mental state or relate to events that could be reasonably be expected to produce significant emotion, feeling or mental state and that third party communications must be produced if they place claimants own communication in context.

While acknowledging the validity of the EEOC’s claim that the discovery request could reveal private embarrassing information, the Court reasoned that this is an inevitable result given the nature of the claimants’ allegations, and that production of the information sought was already shared with at least one other person by virtue of the medium used.

What is the wisdom to be gleamed from this decision? First and foremost, employees should be cognizant that they should have little, if any, expectation of privacy related to SNS profiles and communications notwithstanding any settings of locked or private. The key issue in any lawsuit of this nature will be the relevance of these communications and the proper scope of discovery. Generally, Courts will err in favor of disclosure taking into account general broad discovery rules and that these communications by design are meant to be shared. However, the granting in discovery does not necessarily mean the SNS information will be admitted at trial.

SNS users should be wary and post nothing that they would not want to be shared anywhere, anytime, and under any circumstances in the future.[1]

[1] The Indiana District Court distinguished its case from the Connecticut case of Bass v. Miss Porter’s School, 2009 U.S. Dist., LEXIS 99916, in which the Connecticut District Court required production of the Plaintiff’s entire SNS profile after an in camera review of the discovery documents produced showed them to be underinclusive.

Oregon Teacher Who Quit After Showing Controversial Movie Clip Gets Unemployment Benefits

Fri, 13 Aug 2010 16:45:09 GMT

On August 5, 2010, the Oregon Supreme Court ruled that a teacher who resigned after showing his students a movie clip that contained profanity was entitled to unemployment benefits. Robert McDowell, a first year language arts and drama teacher in Oregon’s Klamath County School District, played a 10 minute clip from the movie “Glengarry Glen Ross” to his senior English class as part of a lesson about language use and misuse. McDowell was placed on administrative leave and was told that termination would be recommended to the school board because he had not obtained approval before showing the profanity-containing clip to his class as required by school district policy. McDowell consulted with a union attorney who told him that there was absolutely no chance that the school board would overrule the termination recommendation, and then resigned and sought unemployment benefits. Benefits were denied, first on the grounds that McDowell was discharged for misconduct, and later on the grounds that he voluntarily left work without good cause. The Oregon Supreme Court reversed, holding that McDowell had good cause to voluntary quit and was, therefore, entitled to unemployment benefits.

As a preliminary matter, the court noted that if McDowell had been fired, he would have been entitled to unemployment benefits because the school district did not tell him about the pre-approval requirement for profanity-containing movies. Thus, showing the movie did not constitute “misconduct” which made McDowell ineligible for benefits.

On the bigger issue of whether McDowell had good cause to voluntarily quit, the court held that he did because termination would have been a “kiss of death” on his teaching career. Since termination would have plagued him in obtaining future employment, McDowell had no reasonable alternative but to quit and a reasonable person in his situation would have voluntarily quit. Accordingly, McDowell had good cause to quit and was entitled to unemployment benefits.

Webinar: Career Colleges' Guide to Labor Law: Unions in Education

Thu, 29 Jul 2010 22:18:04 GMT

As unionizing efforts become a part of the education industry in the Pacific Northwest, schools should take affirmative steps to prepare for potential union activity in their workforce. Who is eligible to vote for a union? Who isn't? Can schools stop organizing visits on work premises by outside parties? What can employers lawfully do in response to organizing efforts? If the union wins, what happens next? Join Williams Kastner attorneys Judd Lees and Todd Sorensen for a webinar designed to provide you with an overview of labor law, including a thorough discussion of what schools can and cannot do before, during and after their employees endeavor to organize under a union.

Date:
September 14, 2010

Time:
Noon - 1:00 p.m. PST

RSVP:
To RSVP, please e-mail seminars@williamskastner.com. An online meeting confirmation complete with instructions on how to join the webinar will be sent to all registrants.

Idaho Parents File Suit, Seek Damages For 8-Year Old Autistic Student's Arrest

Tue, 13 Jul 2010 19:36:59 GMT

Parents Spring and Charles Towry have filed suit, on behalf of themselves and their daughter, against the Kootenai Elementary School, Lake Pend Oreille School District No. 84, and Bonner County Sheriff’s Department, alleging nine separate causes of action arising out of their 8 year-old daughter’s arrest in January 2009.

According to the complaint, the Towry child was diagnosed with Autistic Spectrum Disorder in August 2008. In December 2008, officials at Kootenai Elementary in Idaho held a meeting and instituted an Individual Education Plan (“IEP”) and Behavior Intervention Plan (“BIP”), entirely without the Towry’s knowledge or participation. The plans authorized police intervention to deal with the child, with no requirement of prior notice to the Towrys.

The Towrys allege that on January 9, 2009, the 8-year-old Towry child was arrested at the behest of her teacher, Louise Zumuda, and Kootenai Elementary principal, Betsy Walker, without notice to her parents. According to the complaint, Bonner County Sheriff’s Department Deputies Justin Collins and Kurt Lehman handcuffed the 8-year-old and took her to the Bonner County Juvenile Detention Center, where she was “patted down.”

The Towrys seek relief on nine separate causes of action, including: negligence; intentional infliction of emotional distress; negligent hiring/supervision/retention; breach of contract; disability discrimination under the Americans with Disabilities Act (“ADA”), the Individuals with Disabilities Education Act (“IDEA”), and Idaho statutory law; and violation of the Fourth and Fourteenth Amendments.

While the complaint maintains the anonymity of the child at the center of the dispute, some reports claim to identify the child.

Court Rejects ADA Claim By Diabetic Transferred From Director of Pre-K to Dean of Students

Mon, 12 Jul 2010 19:01:48 GMT

A diabetic school district employee transferred from Director of Pre-K and Student Services to Dean of Students at a district middle school lacks a claim under the Americans with Disabilities Act (“ADA”), a federal district court ruled on July 2, 2010.

In Williams v. Brunswick County Board of Education, plaintiff Lorne Williams alleged that upon requesting 6-month medical leave due to “diabetic levels” in 2007, the Board transferred her to the position of Dean of Students at Shallotte Middle School, violating the ADA. To set forth a claim for ADA discrimination, Williams had to demonstrate, among other things, that she was “disabled” within the meaning of the ADA, and that the Board took an “adverse employment action” against her because of that disability. On the Board’s motion for summary judgment, the U.S. District Court for the Eastern District of North Carolina rejected Williams’ ADA discrimination claim for two primary reasons.

First, applying the pre-January 1, 2009 definition of “disabled,” the court found Williams’ diabetes did not give rise to protected status under the ADA. Notably, under the new definition of “disability” established by the ADA Amendments Acts of 2008, Williams may have qualified as a disabled individual. For more information, see our prior blogpost on the ADA Amendments Act of 2008.

Second, the court rejected Williams’ contention that the transfer from Director of Pre-K and Student Services to Dean of Students at Shallotte Middle School constituted an “adverse employment action” for purposes of her discrimination claim. The court determined that because the transfer came with no change in pay, benefits, or seniority, the move could not rise to the level of an “adverse employment action.” The court expressly rejected Williams’ argument that the broader definition of “adverse employment action” established in the U.S. Supreme Court decision Burlington Northern v. White applied. In Burlington, the Court held that in Title VII retaliation claims, an employment action is “adverse” if it “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” However, the district court in Williams v. Brunswick County Board of Education found that broader definition to be limited to the context of retaliation claims, and therefore inapplicable to Williams’ ADA discrimination claim.

In a more cursory fashion, the court also rejected Williams’ ADA retaliation claim, finding no evidence of adverse action even under the more lenient Burlington Northern v. White standard, largely because the Board actually granted Williams her requested 6-month medical leave.

Investment Firms Secretly Behind Letter to Department of Education Criticizing For-Profit Education Industry

Fri, 09 Jul 2010 20:52:44 GMT

A report by Pro Publica indicates that an investment firm representative solicited signatures on a letter sent to the U.S. Department of Education, under the signature of homeless shelter agencies, alleging that for-profit colleges had recruited homeless youths as prospective students.
According to Pro Publica’s report, an investment firm paid Johnette McConnell Early to solicit signatures from homeless centers, without disclosing her affiliation with the investment firm. Now, some homeless shelter representatives who signed the letter feel duped, indicating they may never have signed the letter if Ms. Early’s affiliation had been disclosed.

In light of this news, there is heightened concern that some involved in the effort to regulate for-profit schools are acting out of self-interest. Such concerns came to light last month following testimony at a hearing before the Senate Committee on Health, Education, Labor & Pensions. On June 24, 2010 at the first of a series of Committee hearings on for-profit education reform, hedge fund manager Steven Eisman offered testimony against the for-profit industry, predicting “the industry’s default rates are about to explode.” Many have questioned the propriety of allowing testimony from Mr. Eisman on the subject, as Mr. Eisman has no relevant experience, and is instead best known for turning a profit by betting against mortgage securities shortly before their crash. The Career Colleges Association attacked Eisman’s self-interested testimony as follows:

During a May 26, 2010 speech at a hedge fund conference in Manhattan, Eisman promoted increased federal regulation of higher education as a means to assure that stock prices of higher education companies would fall by as much as 60 percent.

Get that? Steven Eisman wants the regulation of higher education to get rich -- not because it will be good for students or the schools. And now this hedge fund manager is leveraging a U.S. Senate hearing to take more short-selling profits.

Another organization, Citizens for Responsibility and Ethics in Washington also criticized Eisman’s testimony, and sent a letter to Chairman Tom Harkin, declaring:

To our knowledge, Mr. Eisman has no expertise in education policy; he holds no degrees, has no experience, and no background on the education policies at issue. Mr. Eisman’s only experience is that he works for a hedge fund that is betting millions of dollars on stock prices falling in the for-profit education industry. His financial conflicts of interest could not be more blatant, yet they were not disclosed in advance of his testimony. Even more troubling is Mr. Eisman’s use of the congressional hearing and the Committee as a vehicle to advance his own economic interests by dragging down stock prices of publicly traded companies.

Today’s Pro Publica report fuels suspicions that, while disinterested critics and reformers of the for-profit industry do exist, self-interested parties are playing a significant role in pushing for heightened regulation of the for-profit education industry.

University of Idaho Reaches Settlement In Retired Employees' Lawsuit Over Medical and Life Insurance Benefits

Fri, 09 Jul 2010 16:30:24 GMT

KLEWTV of Lewiston, Idaho, reports that the University of Idaho has reached a settlement with 250 retired employees, who had filed suit alleging the University made improper changes to their medical and life insurance benefits after they agreed to early retirement programs between 1998-2002. According to the report by KLEWTV, the settlement guarantees that the retired employees’ medical insurance premiums will never increase more than 10% over the prior calendar year, and their life insurance will not fall beneath the current benefit level. KLEWTV offers video of the court’s approval of the settlement.

Former Washburn University Administrators File Suit Alleging Retaliatory Discharge

Fri, 09 Jul 2010 16:17:48 GMT

On July 8, 2010, two former top administrators at Washburn University filed suit against the University, its Board of Regents, and its president, Dr. Jerry B. Farley. In their complaint, former Vice President for Administration Wanda Hill and former Vice President for Academic Affairs Robin Bowen allege that Farley terminated their employment without cause, without due process, and in retaliation for whistleblowing.

According to Hill and Bowen’s complaint, between 2006 and 2010 a rift developed between Farley and the Board, leaving Hill and Bowen stuck in the middle. Hill and Bowen allege that under Farley’s direction the University skewed enrollment and credit hours by, among other means, counting “phantom students” in order to artificially inflate enrollment numbers and allow for wrongful receipt of federal financial aid. In addition, they allege, at Farley’s behest the University provided more scholarships to students than had been authorized in the University budget. University funds were allegedly used to cover the scholarship shortfall.

Hill and Bowen allege that the Board suspected Farley was covering up such practices, and as a result the Board approached Hill and Bowen seeking the truth about Farley’s practices. Hill and Bowen spoke openly with the Board. In early 2010, as members of the Board allegedly began clamoring for Farley’s removal, Farley terminated Hill and Bowen.

Hill and Bowen assert three claims: (1) Deprivation of Due Process; (2) Breach of Contract; and (3) Retaliation. As to the first two claims, Hill and Bowen allege that termination of their employment without cause violated their employment contracts and, as Washburn University is a municipal subdivision of Kansas, violated their constitutional right to due process under 42 U.S.C. § 1983 and the Fifth and Fourteenth Amendments. In support of their retaliation claim, Hill and Bowen claim their reports to the Board of Regents on Farley’s activities constituted protected action, and that Farley terminated them for such whistleblowing. For more information, consult The Topeka Capital-Journal.

University of Washington Under Fire for Undercover Police Officer Surveillance of Student Groups

Fri, 09 Jul 2010 06:24:26 GMT

The Seattle Times reports that a University of Washington police officer attended meetings of student organizations undercover, posing as a student. According to the report, Officer Tanesha Van Leuven attended a Student Workers Coalition meeting and identified herself as "Tani," concealing her identity so that she could conduct surveillance on the organization, which had been planning a demonstration in support of UW custodians. In the wake of the discovery of Officer Van Leuven's true identity, theAmerican Civil Liberties Union is calling for anti-surveillance legislation. The Times also reports that UW officials have expressed their disapproval of Officer Van Leuven's actions. A Komo News report includes additional information on this story, including a photograph of the officer at issue.

Regulation of Student Speech in the Social Networking Era

Thu, 08 Jul 2010 21:04:43 GMT

The explosion of blogging and social networking sites, such as MySpace, Facebook and Twitter, has spurred much debate and angst over the extent to which school officials may impose discipline for potentially harmful conduct by students in cyberspace. In the attached article entitled Student Speech in the Social Networking Era, Jessie Harris and Samantha Noonan explore how courts have adjusted their traditional approaches to student speech to fit today’s social media. The article will improve your ability to respond to controversial student expression on campus and on the internet.

Texas Supreme Court Rejects FMLA Claim Against UTEP On The Basis Of Sovereign Immunity

Thu, 08 Jul 2010 00:16:20 GMT

On July 2, 2010, the Supreme Court of Texas rejected a former University of Texas at El Paso (“UTEP”) employee’s Family Medical Leave Act (“FMLA”) claim, ruling that the FMLA’s self-care provision does not trump the established doctrine of sovereign immunity.

Alfredo Herrera served as a heating, ventilation, and air-conditioning technician for UTEP. After sustaining an on-the-job injury to his left elbow in March 2005, Herrera took nine months and returned to work in January 2006. Less than one month later, UTEP terminated Herrera. Herrera filed suit, alleging UTEP unlawfully terminated him for having taken personal medical leave under the FMLA’s “self-care” provision.

The FMLA, the federal statute underlying Herrera’s claim, generally provides that employees who have worked for at least 12 months for a qualified employer, with at least 1,250 working hours during those months, is entitled to unpaid family and medical leave for certain qualifying conditions. In Herrera’s case, the qualifying condition at issue was the “self-care” provision, which establishes an eligible employee’s ability to take leave for his own serious health condition. 29 U.S.C. §2612(a)(1)(D). The FMLA provides employees protection against an employer’s attempt to interfere with FMLA leave or retaliate against employees for having taken FMLA leave.

Against Herrera’s rights under the FMLA stood over a century of federal and state jurisprudence establishing that the U.S. Constitution does not provide for federal jurisdiction over non-consenting states. That doctrine is referred to as “sovereign immunity.” Congress cannot undermine a state’s sovereign immunity unless it: (1) unequivocally expresses its intent to do so; and (2) acts under a Constitutional provision which gives Congress the power to do so.

UTEP, a state institution, filed a motion to dismiss, attempting to use state sovereignty as a shield against Herrera’s FMLA claim. The trial court denied UTEP’s motion, and the Texas Court of Appeals affirmed, leading to UTEP’s appeal to the Supreme Court of Texas. On appeal, the Supreme Court of Texas acknowledged the text of the FMLA expressly subjects the states to FMLA claims in 29 U.S.C. § 2617(a)(2), thus satisfying the first step in abrogating sovereign immunity. However, the court found that the second prong could not be satisfied, as Congress did not have authority under the Constitution to abrogate Texas’ sovereign immunity under the FMLA’s self-care provision.

In reaching its decision, the Supreme Court of Texas distinguished Herrera’s case from the U.S. Supreme Court case of Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 721 (2003). In Hibbs, the U.S. Supreme Court held that Congress lawfully abrogated the states’ sovereign immunity by subjecting states to liability for violation of the FMLA’s “family-care provision,” 29 U.S.C. § 2612(a)(1)(C), which provides an eligible employee may take leave to care for a family member with a serious health condition. The Supreme Court of Texas reasoned that while the “family-care” provision’s application to states was justified by §5 of the Fourteenth Amendment as a means to enforce guarantees of equal protection, the self-care provision in 29 U.S.C. §2612(a)(1)(D) is not. While the family-care provision is intended to combat gender discrimination, the court found the self-care provision is not. Accordingly, the Supreme Court of Texas held that UTEP enjoyed protection under the doctrine of sovereign immunity. After further rejecting plaintiff’s claim that UTEP waived sovereign immunity by acknowledging the FMLA in its Handbook of Operating Procedures, the court dismissed Herrera’s FMLA claim.

Class Action Lawsuit Filed Against Illinois School of Health Careers Alleges Misrepresentations Regarding Accreditation, Eligibility to Sit for CNA Exams

Thu, 01 Jul 2010 17:44:30 GMT

Current and former students of the Illinois School of Health Careers (“ISHC”) have filed suit against ISHC and its parent, Forefront Education, Inc., alleging the school misrepresented the nature of the its Patient Care Technician Program (“PCT Program”). As set forth in their complaint, the plaintiffs allege that ISHC and Forefront made various misrepresentations, including representations regarding the nature of the school’s accreditation and the eligibility of PCT Program graduates to sit for state board exams to become Certified Nursing Assistants (“CNA”). Plaintiffs plan to seek class action status. According to the Chicago Tribune, plaintiff’s counsel Thomas Zimmerman indicates plaintiffs will seek at least $5 million in damages. The Chicago Tribune also reports that in a June 2, 2010 letter, Forefront’s president, David Mohr, indicated that “unauthorized and wrong” information had errantly been disseminated, but that Forefront remained committed to ensuring the students at issue “have an opportunity to sit for the CNA exam.”

Departments of Justice and Education Warn College and University Use of Kindle and Other E-Readers May Violate ADA

Wed, 30 Jun 2010 18:04:31 GMT

On June 29, 2010, the Department of Justice and Department of Education issued a joint warning letter regarding the use of “dedicated electronic readers” in colleges and universities. The term “dedicated electronic readers” encompasses a number of new handheld devices which allow students to download and read books, such as Amazon’s Kindle, Sony’s Reader Daily Edition, and Barnes & Nobles’ Nook.

The DOJ and DOE’s concern with electronic readers is that most are not accessible to students who are blind or have limited vision because they lack “an accessible text-to-speech function.” As a result, according to the DOJ and DOE, use of such devices may violate the Americans with Disabilities Act (“ADA”):

Requiring use of an emerging technology in a classroom environment when the technology is inaccessible to an entire population of individuals with disabilities – individuals with visual disabilities – is discrimination prohibited by the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504) unless those individuals are provided accommodations or modifications that permit them to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner.

The ADA requires that places of public accommodation—which under 28 C.F.R. 36.104(10) expressly includes private educational institutions—must provide full and equal access to disabled individuals as detailed in 28 C.F.R. 36.201-204.

The warning from the DOJ and DOE comes on the heels of the DOJ’s January 2010 settlement with Case Western Reserve University, Pace University, and Reed College, resolving the DOJ’s claims against those institutions arising out of their use of Amazon’s Kindle DX. Under the terms of that settlement, the institutions agreed not to “purchase, recommend or promote” the use of electronic book readers “unless the devices are fully accessible to students who are blind and have low vision.”

Court of Appeals Upholds Age Discrimination Verdict Against National American University

Tue, 29 Jun 2010 16:53:08 GMT

On June 23, 2010, the Eighth Circuit Court of Appeals upheld a $35,130 jury verdict against
National American University ("NAU") for violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §621 et seq.

In Jones v. National American University, Kathy Jones, a former admissions representative at NAU's Rapid City, South Dakota campus, claimed that NAU denied her promotion to the position of Director of Admissions based upon her age. Jones applied for the position at the age of 56, and made it onto a list of three finalists in the running for the job. Campus president Richard Buckles offered the job to the other two finalists, who declined, but he did not offer the job to Jones. Instead, Buckles initiated a new search for potential candidates, enlisting Jones to help him interview new candidates for the job he had denied her. During the course of those subsequent interviews, Buckles commented regarding one candidate: "I'm not sure we want a grandpa working with our high school students."

Ultimately, Buckles offered the job to Angela Beck, a 34 year-old former associate hospital administrator, with no experience in admissions. Infuriated, Jones immediately quit. Upon receiving Jones' resignation, Buckles declared that Jones would have been the better choice in the "short term," but Beck presented a better "long term" solution, apparently alluding to Beck’s youth.

Jones filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging age discrimination in violation of the ADEA, based upon NAU's failure to promote her to the Director of Admissions position. In response, NAU contended it refused to promote Jones due to her "deficient performance" as an admissions representative. The EEOC dismissed Jones' complaint without a finding of probable cause and issued a right to sue letter.

Jones then filed suit in U.S. District Court for the District of South Dakota, again alleging NAU violated the ADEA by failing to promote her to Director of Admissions. In its defense, NAU claimed it had refused to promote Jones due to her "lack of management experience," notably a different justification than it had offered before the EEOC. At trial, the jury found for Jones, awarding her $35,130. NAU attempted to avoid the verdict by moving for judgment as a matter of law, but the trial court rejected NAU's motion and upheld the jury verdict.

On appeal to the Eighth Circuit Court of Appeals, NAU argued that it should have prevailed as a matter of law because it set forth a legitimate, non-discriminatory reason for its decision not to promote Jones—her lack of managerial experience. However, where an employer claims it took an adverse action against a protected employee for a legitimate, non-discriminatory reason, the employee may in turn prove that the proffered justification action is mere pretext, thereby defeating the employer's defense. An employee may prove pretext by, among other means, "showing the employer's proffered explanation is unworthy of credence." Specifically, "[p]retext may be shown with evidence 'that the employer's reason for the adverse employment action has changed substantially over time.'"

In this case, Jones succeeded in establishing that NAU's proffered justification, lack of management experience, was mere pretext, primarily due to NAU's change of course. Before the EEOC, NAU claimed it refused to promote Jones due to performance deficiencies. But at trial, NAU said nothing about performance deficiencies, and instead claimed it had refused to promote Jones based on her lack of managerial experience. That discrepancy in NAU's story was sufficient for the jury to find pretext and reject NAU's defense. Buckles' age-related comments during the hiring process further buttressed the finding that NAU's justification was mere pretext.

Accordingly, the Eighth Circuit affirmed the trial court order upholding the $35,130 jury verdict against NAU.

Minnesota School Football Coach Charged For Sexting With Student

Tue, 29 Jun 2010 16:46:02 GMT

The Star Tribune reports that Christopher Warnke, an assistant football coach in the Columbia Heights School District in Anoka County, Minnesota, faces six felony charges based upon his sexting with a 14-year old student.

According to the Star Tribune report, Warnke received sexually explicit text messages from a 14-year old female student as “a joke.” Warnke sent back sexually explicit messages to the girl, including a nude picture of himself. Warnke also allegedly forced the girl to touch him in a sexual manner.

The Star Tribune indicates that Warnke “sent the girl 605 text messages in a two-month period.”

U.S. Supreme Court Upholds UC Hastings' Rejection of Christian Legal Society Based Upon Prohibition Against Homosexual Members

Mon, 28 Jun 2010 18:02:15 GMT

As discussed in an earlier report on this blog, the United States Supreme Court undertook review of a Ninth Circuit Court of Appeals decision in Christian Legal Society v. Martinez. On June 28, 2010, the Supreme Court issued its decision, affirming the Ninth Circuit’s ruling that public institution University of California at Hastings Law School lawfully denied recognition to the student group Christian Legal Society (“CLS”).

UC Hastings allows organizations to become Registered Student Organizations (“RSO”), which results in official school recognition, access to school funds and facilities, and the ability to communicate through law school communication channels. However, to obtain and maintain RSO status, these organizations must, under an extension of the school’s Nondiscrimination Policy, “allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [his or her] status or beliefs.” The U.S. Supreme Court would later characterize this rule as the “all-comers condition.”

In 2004, certain students sought RSO status for a UC Hastings branch of CLS, to be a school affiliate of the national organization. Based upon the bylaws of the national organization, the UC Hastings branch of CLS planned to exclude from its membership anyone who participates in “unrepentant homosexual conduct.”

CLS applied for recognition as a UC Hastings RSO, and UC Hastings rejected the application, declaring that CLS failed to comply with UC Hastings’ Nondiscrimination Policy because it barred students based on religion and sexual orientation. CLS requested an exemption from the Nondiscrimination Policy, but UC Hastings refused. While CLS would not be granted the privileges allowed to RSO’s, UC Hastings emphasized that CLS could continue to exist as a non-RSO student organization.

In October 2004, CLS filed suit against UC Hastings officers and administrators under 42 U.S.C. § 1983, alleging UC Hastings officials had violated CLS’ rights to free speech, association, and freedom of religion as established by the First Amendment and the Fourteenth Amendment. The U.S. District Court for the Northern District of California granted summary judgment in favor of UC Hastings, dismissing CLS’ claims. On appeal, the Ninth Circuit Court of Appeals affirmed in favor of UC Hastings. CLS then appealed to the U.S. Supreme Court.

In its 5-4 decision, written by Justice Ginsburg, the U.S. Supreme Court first struggled with whether to proceed under the lower level of scrutiny applied to regulations of speech in a limited public forum, or whether the heightened strict scrutiny approach often applied to restrictions of expressive association should apply. Finding that in this case the free speech and expressive association arose in “exactly the same context,” the Court found them to be “intertwined rights,” which should be evaluated under a single standard. Finding that the case fit “comfortably” within the limited public forum line of jurisprudence, the Court proceeded under the limited public forum paradigm.

The Court’s analysis thus hinged upon the rule that “the State may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, . . . nor may it discriminate against speech on the basis of . . . viewpoint.” Considering first whether UC Hastings’ “all-comers” rule was reasonable, the Court found UC Hastings had several reasonable bases for its rule. Such justifications included: (1) the rule ensured access for all students; (2) the rule allowed UC Hastings to enforce its Nondiscrimination Policy without digging into each proposed RSO’s specific motivations for exclusivity in violation of the rule; and (3) the rule encourages tolerance, cooperation, and learning. The Court found UC Hastings had a reasonable basis for enforcement of its “all-comers” rule for RSO’s.

Next, the Court considered whether UC Hastings had, by virtue of its “all-comers” rule, discriminated on the basis of viewpoint. Emphasizing that UC Hastings still allowed organizations not approved as RSO’s to continue to operate on campus, the Court found UC Hastings had not engaged in viewpoint discrimination. In fact, the Court declared: “An all-comers condition on access. . . is textbook viewpoint neutral.” UC Hastings was merely “dangling the carrot of the subsidy, not wielding the stick of prohibition.”

The Supreme Court affirmed the Ninth Circuit’s ruling in favor of UC Hastings, but remanded to the Ninth Circuit for further consideration of CLS’ claim that UC Hastings’ “all-comers” policy was mere pretext for viewpoint discrimination.

New York Times Article Examines Sexting and Cyberbulling From Schools' Perspective

Mon, 28 Jun 2010 17:58:45 GMT

The New York Times reports on the challenges and legal liability posed by sexting and cyberbullying in an article entitled Online Bullies Pull Schools Into the Fray. In her report, Times reporter Jan Hoffman observes that the contours of what conduct can and cannot be regulated by school officials are still largely undefined, leaving a great deal of uncertainty and exposure for schools.

Seattle Times Claims College and University Employees Retire and Return To Abuse Loophole, Collect Salary and Pension Simultaneously

Mon, 28 Jun 2010 17:50:39 GMT

The Seattle Times reports that "dozens of university or college employees have stepped down and then quickly gone back to work, often in the same job--raking in both pension and salary." Seattle Times staff reporters Nick Perry and Justin Mayo claim these officials are "exploiting a loophole" in Washington's retirement legislation, allowing them to at once collect salary and pension for the same position. The Seattle Times investigation points predominantly to examples from the Washington State University and Green River Community College.

Senate Hearings on For-Profit Education Industry Begin

Fri, 25 Jun 2010 17:41:26 GMT

On June 24, 2010, the Senate Committee on Health, Education, Labor & Pensions held its first in a series of hearings designed to investigate the practices and virtues of the for-profit education sector. As Chairman Tom Harkin observed: “For many students, attending a for-profit college is a great decision. And when those students succeed, they not only pay off their loans, they also make good on the federal investment in their future.”

However, Senator Harkin also observed that some students have a “different experience,” ending without a degree but with a heavy load of student debt, causing the Committee to question the wisdom of the federal investment in the industry through federal grants and loans. The Committee’s concerns are set forth in a report entitled, Emerging Risk?: An Overview of Growth, Spending, Student Debt and Unanswered Questions in For-Profit Higher Education.

Following Senator Harkin’s comments, the Committee opened the floor to five witnesses. Full video coverage of the hearing, including senators’ questions and the answers of each witness, is available on the Committee website. In addition, testimony from each witness in written form is included in the links that follow here, attached to each witnesses’ name. The hearing included testimony from Kathleen Tighe, Inspector General of the Department of Education, Yasmine Issa, former student of Sanford Brown Institute, Margaret Reiter, former Supervising Deputy General in the California Attorney General’s Office, and Steven Eisman, hedge fund manager. The hearing also included testimony from the lone representative from the for-profit education sector itself, Sharon Thomas Parrott, Senior Vice President, Government and Regulatory Affairs and Chief Compliance Officer for DeVry, Inc.

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