Midwest Education Law

Yesterday the U. S. Supreme Court declined to review a Fifth Circuit decision that a parent acted unreasonably by rejecting a school district's settlement offer and continuing the case for more than three years.  That decision resulted in denying the parent's request for over $45,000 in attorney's fees.

The case, El Paso Independent School District v. Richard R., 53 IDELR 175 (5th Cir. 2009), cert. denied, 110 LRP 35628 (U.S. 6/21/10), is the seventh special education case denied certiorari by the Supreme Court this year.

During the resolution session prior to the due process hearing, the school district made a settlement offer of all relief sought by the parent plus reasonable attorney's fees.  The parent rejected this offer and continued with litigation for three years, arguing before the Fifth Circuit that the proposed settlement offer would not have been enforceable. The Fifth Circuit disagreed, ruling the parent could not recover attorney's fees for work performed after the settlement offer.  In addition, the Fifth Circuit noted it had discretion as to whether to award attorney's fees for work performed prior to the written offer of settlement.  The Court then vacated the lower court's award of $45,804 in attorney's fees for work performed prior to the settlement offer, citing the unreasonable protraction of the litigation as the reason for precluding such an award.      

The Supreme Court has rejected the opportunity to consider the appeal of the NEA and school districts in Michigan, Texas and Vermont challenging the No Child Left Behind Act (NCLB) as an unfunded mandate.  The Court issued its refusal without comment.

The appeal in the case, School District of the City of Pontiac v. Duncan (Case No. 09-852), focused on a provision in NCLB that explicitly prohibits requiring states or school districts "to spend any funds or incur any costs not paid for under this act."  The NEA wanted the Supreme Court to consider whether this language would also prevent the Department of Education from requiring states to spend their own funds to meet NCLB requirements.  The suit was initially filed during the Bush Administration.  However, the Obama Administration's Solicitor General, Elena Kagan, filed a brief on behalf of the Department of Education's Secretary Arne Duncan urging the Court to decline review of the case.  Kagan has since stepped aside from her Solicitor General position while her nomination to the Supreme Court is pending.  The Administration argued that the NCLB expressly moves away from dictating funding levels and instead provides states with "unprecedented flexibility to target federal dollars to meet state and local priorities."

The case came to the Court after an 8-8 deadlock decision in the Sixth Circuit Court of Appeals, leaving the original dismissal of the case in 2005 by a federal district court intact. 

A teacher at Francis Howell High School in St. Charles, Missouri is currently under investigation regarding her decision to show her students the Michael Moore movie “Sicko” and write about the persuasion techniques used in the movie for the class final assignment. Details of the story first emerged on a local St. Louis blogger website and later picked up by the St. Louis Post-Dispatch. The student, Celeste Finklebine, told the newspaper the purpose of the assignment was to analyze different forms of persuasion. She complained that the teacher, Debra Blessman, chose the movie without first obtaining administrative approval for the assignment. “Sicko,” created by Michael Moore, a well-known filmmaker, offers a critique of the present U. S. health care system. Miss Finklebine was ultimately allowed to complete the assignment with a review of Dr. Martin Luther King’s “Letter from a Birmingham Jail.” Miss Finklebine also alleges the teacher called her a “teabagger” earlier in the school year, a reference to her participation in local “Tea Party” political activities.

A district official confirmed that teachers are supposed to consult with an administrator before showing a movie in class and explain how it relates to the curriculum. The district also noted that the matter would be handled through the district’s teacher evaluation process but would not comment on whether Ms. Blessman was disciplined, as the matter is a personnel issue.

Districts should ensure they have a clear policy developed in accordance with district legal counsel regarding the use of outside materials such as movies in the classroom, particularly if it contains politically charged or other potentially controversial content. Student or parent complaints about the chosen materials should be handled on a case-by-case basis and in some cases, an alternative assignment may be appropriate.

According to a new federal court of appeals , school districts who want to protect sensitive information gathered in internal investigations may be able to claim it as privileged if they use outside legal counsel to conduct the investigation. Maintaining the information as attorney-client privileged would protect the information from being disclosed to adverse parties in future litigation, possibly help ensure frank discussions with employees involved in the matter and improve the district's ability to effectively investigate and respond to complaints. The court lays out a road map for making the investigations privileged in the case. The attorneys in the case took several important steps as noted by the court. First, the attorneys advised employees during confidential interviews that they represented the school board, not the employee, and the school board had control over whether the conversations remained privileged. Second, no third parties attended the interviews. Third, the board received the report from the attorneys in an executive session closed to the public. Fourth, the written summary of the investigation was marked "Privileged and Confidential," "Attorney-Client Communication," and "Attorney Work Product." Finally, the attorneys and school board president submitted affidavits to the court affirming the law firm was hired to provide legal advice in the the context of facts it uncovered during the internal investigation. When requesting the assistance of outside counsel in such investigations, school districts should also consider asking legal counsel to draft any reports or interview summaries with an eye toward possibly disclosing them in support of its case in future litigation, should it become advantageous to do so.