Recent School Law Decisions Affecting Student Privacy Rights, Special Education, Grievance Procedures, and Charter Schools

Recent School Law Decisions Affecting Student Privacy Rights, Special Education, Grievance Procedures, and Charter Schools
From the July 2009 Riker Danzig School Law UPDATE

Safford Unified School Dist. No. 1 v. Redding
United States Supreme Court, June 25, 2009

The United States Supreme Court ruled in this case from Arizona that the strip-search of 13-year-old Savana Redding by a female school nurse and administrative assistant was not sufficiently justified by their suspicion that Savana was in possession of contraband to survive a challenge based on the Fourth Amendment prohibition against unreasonable searches.

Acting on instructions of a vice-principal, who in turn was acting on the basis of statements made by other students implicating Savana (including statements by another girl who also was strip-searched), the nurse and assistant were looking for contraband prescription-strength ibuprofen pills. According to the Court, after complying with orders to remove her pants and shirt, Savana "was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree." Also, according to the Court, "No pills were found."

The Court reaffirmed the rule established in its 1985 decision, New Jersey v. T.L.O., that a search of a student by school officials will be upheld against a Fourth Amendment challenge when it is "justified in its inception" and "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." It explained that this rule requires at least "a moderate chance of finding evidence of wrongdoing." The school district had attempted to justify the search of Savana by suggesting, "as a truth universally acknowledged," that "students … hide contraband in or under their clothing." The Court responded:

[W]hen the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short; a reasonable search that extensive calls for suspicion that it will pay off. But non-dangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear; neither [of the other students] suggested to [the vice-principal] that Savana was doing that, and the preceding search [of the other student] … had yielded nothing….

[W]hat was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs in their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think the combination of these deficiencies was fatal to finding the search reasonable.

The Court then added:

…[W]e mean to cast no ill reflection on the assistant principal, for the record raises no doubt that his motive throughout was to eliminate drugs from the school and protect students …. We do mean, though, to make it clear that the T.L..O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure to intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.

The Court also ruled, however, that the numerous decisions by lower courts upholding similar searches based on their reading of T.L.O. "counsel doubt that [the Court] was sufficiently clear in the prior statement of the law," so that the school officials involved here were entitled to immunity from suit. It remanded the case for a determination of the school district's liability.

Forest Grove School District v. T.A.
United States Supreme Court, June 22, 2009

The United States Supreme Court ruled in this case from Oregon that the Individuals with Disabilities Act (IDEA) authorizes reimbursement of the cost of private special education services when a school district fails to provide a student with a free appropriate public education and the private school placement is appropriate, even if the student has never received special education services through the public school. Specifically, the Court ruled that IDEA amendments adopted in 1997, permitting reimbursement of the costs of parents' unilateral placements for students who have "previously received special education and related services under the authority of a public agency" do not preclude reimbursement for students who never have received special education services in the public schools.

This case differed from two earlier cases in which the Court had ordered reimbursement for unilateral private school placements, School Comm. of Burlington v. Massachusetts Dept. of Ed. and Florence Cty. Sch. Dist. v. Carter, both decided before the 1997 amendments. In both of those cases, students had received services in the public schools and the districts had offered special education programs that were found to be inadequate, whereas here the district had found the student ineligible and offered no program, and therefore the student had not received any special education services. The Court found that these differences were "insignificant," and that the reasoning of Burlington and Carter, that Congress did not intend to require parents to either accept an inadequate public-school education or bear the cost of a private education, applied equally here.

Moreover, the language of the 1997 amendments, permitting reimbursement in certain circumstances, "does not foreclose reimbursement awards in other circumstances" the Court found. The provisions describing the conditions required for reimbursement are "elucidative rather than exhaustive," it said.

Still, to allay fears expressed by the school district and others, the Court noted that courts retain the discretion to reduce the amount of parental reimbursement if "the equities so warrant," such as in cases where the parents fail to give the district adequate notice of their intent to enroll the child in private school. Whether to award full or partial reimbursement is a matter to be decided based on the circumstances as a whole rather than any one factor.

Mount Holly Twp. Bd. of Ed. v.
Mount Holly Twp. Ed. Ass'n
New Jersey Supreme Court, June 24, 2009

The New Jersey Supreme Court ruled in this case that protections provided by a collectively negotiated agreement cannot be "diminished" by the terms of an individual employment contract, and that provisions of a collectively negotiated agreement calling for arbitration of disciplinary action, including mid-term disciplinary discharge, will prevail over the terms of an individual contract permitting termination on 14 days' notice.

The Supreme Court overruled the decision of the Appellate Division, which had held that the employee could be terminated on notice, since the collectively negotiated agreement did not specifically state that any dismissal would be subject to the grievance procedure (including arbitration). "No special phrases or formulaic words are required," the Supreme Court stated; if the agreement may be read to provide for arbitration of a particular dispute, it must prevail over any contrary terms in the employee's individual contract. This is consistent with a 2006 amendment to the PERC statute, which provides for a "presumption of arbitrability" by stating:

In interpreting the meaning and extent of a provision of a collective negotiation agreement providing for grievance arbitration, a court or agency shall be bound by a presumption in favor of arbitration. Doubts as to the scope of an arbitration clause shall be resolved in favor of requiring arbitration.

It would appear that the lesson of this case and the PERC amendment is that public employers, including boards of education, should not rely on the terms of individual employment contracts - or anything else, such as board policy - that conflict with the terms of collectively negotiated agreements regarding matters that will be subject to arbitration. While this case involved termination of an employee, its holding probably would apply to other actions that would be matters of board discretion but for the terms of the grievance procedure in a negotiated agreement. Therefore, boards should strive for their collectively negotiated agreements to be as clear as possible, and as narrow as possible, regarding the scope of the grievance procedure and the right to resolve disputes through arbitration.

Crapelli v. Red Bank Charter School
Superior Court of New Jersey
Appellate Division, June 23, 2009

This case involves the issue of the scope of authority of charter school boards of trustees. It was brought by former members of a charter school's board, challenging action by the board authorizing settlement of certain litigation and seeking to restrain the board from paying out any public funds in settlement of the litigation. The Commissioner denied the requested relief on the ground that the board's action was neither ultra vires nor an abuse of its discretion, and the Appellate Division upheld the Commissioner's decision.

The case's primary significance is the ruling that the Commissioner will not overrule discretionary action by a charter school board of trustees unless that action amounts to an abuse of discretion. A board's action "may not be upset unless patently arbitrary, without rational basis or induced by improper motives," the court stated. This is the same standard that has been applied to action by boards of education since 1960 pursuant to Kopera v. West Orange Bd. of Ed.

Almost equally significant is the lesson to be drawn from the complex facts of the case, as described by the court. The litigation had arisen out of a construction contract entered into by the Red Bank Charter School Foundation, an independent entity established for the purpose of raising money for the school. The foundation had entered into the contract without following the requirements of the Public School Contracts Law and financed the project with loans secured by property acquired by the foundation and then transferred to the school. After cost overruns and additional loans, the combined debt owed by the school and the foundation exceeded the value of the school's property. Board members sought an investigation by the NJDOE Office of Fiscal Accountability and Compliance (OFAC). OFAC found that the school and the foundation were "in essence the same organization"; and that the foundation had "incurred massive debt through a poorly managed building project," had violated the Public Schools Contracts Law and other statutory provisions requiring board authorization of expenditures, and had violated the provision of the charter school regulations prohibiting debt in excess of the appraised value of the property securing the debt. It ordered the school to refund state aid in the full amount of the debt and to adopt procedures to ensure compliance with applicable requirements.

In the meantime, the contractor sued the school to collect the amounts owed under the contract entered into by the foundation and a lender sued on debt incurred by the foundation. The school negotiated a reduction in the penalty imposed by OFAC and a settlement with the contractor and lender, which led to this case. The Commissioner upheld the settlement, finding that it was reasonable in light of the board president’s testimony that he had been “unable to obtain any assurances” that the school had a “significant likelihood of success” on its claim that it was not liable for debt incurred by the foundation. This case is instructive for both charter school boards of trustees and local boards of education, in that boards may not be able to insulate themselves from liability for action taken by foundations to which they are so closely tied that they are, like those here, "in essence the same organization."