2015 Summer Law - Gatlinburg

2015

Summer Law Institute July 24-25 • Gatlinburg

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Agenda Friday – July 24, 2015 7:00 – 8:00

BREAKFAST (Provided)

8:00 – 8:05

WELCOME Susan Lodal, TSBA President Kingsport City Schools

8:05 – 8:10

OVERVIEW Randall Bennett, TSBA Deputy Executive Director & General Counsel

8:10 – 9:20

LEGISLATIVE UPDATE Lee Harrell, TSBA Director of Government Relations & Labor Relations

9:20 – 10:15

WHEN RIGHTS AREN’T CIVIL: A Discussion of Board/Board Member Exposure in Civil Rights Lawsuits Chris W. McCarty, Attorney Lewis, Thomason, King, Krieg and Waldrop P.C.

10:15 – 10:35

BREAK

10:35 – 11:30

BEP Funding Issues D. Scott Bennett, Attorney Leitner, Williams, Dooley & Napolitan

11:30 – 1:00

LUNCH (Provided) 2

1:00 – 1:55

YOU THINK YOU CAN TAKE MY CELL PHONE? How School Administrators May Restrict On/Off Campus Speech Charles Purcell and Chris Hayden, Attorneys Purcell, Sellers, & Craig

1:55 – 2:05

BREAK

2:05 – 3:00

WHOSE FAULT IS IT ANYWAY? School System Liability Issues Robert G. Wheeler, Jr. Attorney

3:00 – 3:20

BREAK

3:20 – 4:15

DEALING WITH DIFFICULT SITUATIONS! Hopefully Without Being Sued Steve Shields & Debra Owen, Attorneys Jackson, Shields, Yeiser & Holt

4:15 – 4:20

Wrap-Up & ADJOURN

4:20 – 5:20

Ethics CLE (Attorneys Only) Electronic Documents and Ethical Obligations Charles W. Cagle, Attorney Lewis, Thomason, King, Krieg and Waldrop P.C.

Saturday – July 25, 2015 7:30 – 8:30

BREAKFAST (Provided)

8:30 – 10:00

SPECIAL EDUCATION LAW: What the Courts are Saying in 2015 Melinda Jacobs, Attorney-at-Law

10:00 – 10:15

Question & Answer Period

10:15 – 10:30

Evaluation & Wrap-Up

10:30

ADJOURN

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Legislative Update

Lee Harrell, TSBA Director of Government Relations & Staff Attorney

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Legislative Update Lee Harrell Director of Government Relations & Staff Attorney Summer Law 2015

Lobbying Expenses – PC 132 • Different approach than legislation that was filed last year – to enable line item veto by funding body.

• This bill requires a board’s budget to have a line item for “professional associations and lobbying expenditures.”

• It also requires a board’s budget to include a form that outlines these expenses when presenting it to the funding body.

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Teacher Evaluations – PC 158 • Tennessee Teaching Evaluation Enhancement Act • For teachers with individual growth data, there is a phase-in of the weight of the new assessment with the growth component.

• 2015-2016 – 10% • 2016-2017 – 20% • 2017-2018 – 35% • However, if the most recent year’s growth data would result in a higher evaluation score, it will account 35%.

Teacher Evaluations – PC 158 (cont) • For teachers without individual growth data, the evaluation percentages change.

• Currently, 60% observations – 40% data (25% growth) • 2015-2016 – 70% observations – 30% data (10% growth) • Thereafter – 70% observations – 30% data (15% growth)

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TCAP Testing Window – PC 184 • Since the 2011-2012 school year, the TCAP has been administered during a two week window could not began until the first Monday on or after April 22.

• At least 150 days of instruction was required prior to the administration of the TCAP. • The Commissioner of Education will now have the ability to annually establish the testing window with no requirements of minimum days of instruction.

Notice of Non-Renewal of Contracts - PC 232 • Currently, notice must be provided to teachers by June 15 of their dismissal or failure of reelection.

• This date was part of Gov Haslam’s tenure bill.

• The bill as drafted moved the date to May 15.

• Agreement reached and law reads “within 5 business days following the last instructional day for the school year.”

– effective for 2015-2016 school year.

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Little Hatch Act – PC 239 • Removes exception for employees of a school system with the state laws regarding campaigning on public property.

• Prohibits these employees from displaying campaign materials or actively campaigning during the hours in which they are performing school duties.

• Restricts LEAs from having a policy which is more restrictive of the political activities of these employees while on leave or during those hours in which they are not required to perform school duties.

Guns in Parks – PC 250 • Removes the ability of cities and counties to prohibit the possession of firearms in parks and similar lands.

• Changes the criminal code regarding the possession of a weapon on these lands while in use by a school.

• Only a crime if carrying in the immediate vicinity, and if…

– The permit holder knew or should have known of the school function, or – the permit holder failed to take reasonable steps to leave the area once he/she became aware of the school function.

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TCAP Results and Final Grades – PC 256 • The original bill would have enabled LEAs to decide whether or not to include TCAP results in their students’ final grade.

• Several legislators were concerned about taking the students’ “skin out of the game.”

• As enacted, if an LEA does not receive the TCAP results at least five (5) instructional days before the end of the school year, it may choose to exclude the results from grades.

• This change prevents an LEA from having to seek a waiver if the results are not received timely.

Students in DCS Custody – PC 357 • As filed, this bill prohibited LEAs from requiring additional graduation requirements of students in or leaving the custody of DCS if the student enrolled or transferred into the system in 10th grade or later.

• As enacted, this prohibition is in place for those students who enroll or transfer into a system in 11th grade or later.

• State diploma versus a system diploma.

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Standards Review and Adoption – PC 423 New Standards to be fully implemented in 2017-2018 school year.

ELA K-5

ELA 6-8

ELA 9-12

ELA Review & Development Committee

Math 6-8

Math K-5

Math 9-12

Math Review & Development Committee

Standards Recommendation Committee

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Special Ed Vouchers – Public Chapter 431 • Tennessee’s first voucher program • Will apply in 2016-2017 • Provides state and locally required dollars to nonpublic schools • Students with the following disabilities are eligible: Autism; Deaf-blindness; Hearing impairments; Intellectual disability; orthopedic impairments; Traumatic brain injury; or Visual impairments

ASD Expansion of Enrollment Public Chapter 507 •

Enables ASD schools to enroll children of staff, sponsor or governing body.

•

Enables ASD schools to enroll FRPL students attending schools not on the priority list - Cap at 25% of enrollment.

•

Authorizes the ASD to charge a fee from charter schools up to 3% of per pupil funding. LEAs still lack this authorization.

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Vouchers HB 210/SB 122 & HB 1049/SB 999 •

Both bills were very similar to Gov’s Proposal of last couple years.

•

FRPL students attending schools on priority list.

•

State BEP $ with local $ required as match. ~ $6,300

•

Annual caps – 5,000/7,500/10,000/20,000

•

If unfilled seats, remaining vouchers may be awarded to any student within the district.

•

Surprisingly, there was a lot of support this year.

Fees for Inspection of Records HB 315/SB 328 •

This bill would enable governmental entities to charge fees for requests to inspect public records.

•

The bill directs the Office of Open Records Counsel to develop the schedule of reasonable fees (like the schedule for copies).

•

The language currently requires that at least the first hour of labor and the first 25 copies produced (if any) be free.

•

Press Association and Coalition for Open Government opposed the bill.

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Class A School Buses HB 450/SB 524 & HB 238/SB 433 •

Last year, the allowable years of service for conventional and Class D buses were extended.

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This bill applies to Class A School Buses.

•

As drafted, the years of service would be extended from 12 to 15 for buses manufactured after July 1, 2005.

•

However, in the Transportation Subcommittee, the bill was amended to apply to all of these buses regardless of year of manufacturing.

•

Virtually no push back but did not pass because of scheduling.

Parent Trigger - HB 651/SB 600 •

This was the third year that this bill has been filed.

•

Pushed by Parent Revolution which was started by the founders of Green Dot Public Schools which is a charter school operator.

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Would allow parents of students in the bottom 10% of schools to petition the board to require the implementation of a transformation model or turnaround model.

•

This bill also enables teachers or parents to petition the board to convert a school to a charter school, and the petition outlines who the sponsor shall be.

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Electing Superintendents - HB 907/SB 391 •

“Local School District Empowerment Act”

•

2/3 vote of legislative body, then referendum.

•

If an election is held prior to the expiration of the contract, legislative body is responsible for buyout.

•

Responsibilities revert to pre-1992.

•

State board shall establish minimal qualifications.

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10 School System “Pilot”

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HB 1189/SB 1291

Questions?

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2015 Public Acts Relative to K-12 Education Chapter Number

Subject

Abstract

Bill Number

46

County Officers

Removes obsolete and contradictory language concerning temporary superintendents of schools.

SB0538

Education

Changes references in the code from vocational education to career and technical education; changes references in the code from the board for vocational education to the board for career and technical education.

SB0087

DUI Offenses

Directs the commissioner of education to develop guidelines for LEAs to create an annual report, rather than a monthly report, that informs students of the death of any person 18 years of age or younger who died as a result of a person 18 years of age or younger driving under the influence of an intoxicant or drug.

SB0109

Employees, Employers

Creates a cause of action against an employer for discharge or adverse employment action based solely on transportation or storage of a firearm ammunition in an employer parking lot.

SB1058

83

Adoption

Requires that the family life curriculum, to the extent that the topic and the manner of communication is age-appropriate, inform students, in all LEAs, concerning the process of adoption and its benefits.

SB0046

132

Local Education Agencies

Requires local boards of education to provide financial information concerning expenditures for lobbying and professional associations.

HB0772

141

Students

Authorizes a school principal to excuse students for non-school-sponsored extracurricular activities; requires the student to submit to the school documentation of the activity and the parents to submit a written request to the principal at least seven days prior to the student's requested excused absence.

SB0359

142

Education

Extends the date of the repeal of the Virtual Public Schools Act from June 30, 2015, to June 30, 2019.

SB0343

158

Education

Enacts the "Tennessee Teaching Evaluation Enhancement Act."

HB0108

55

58

80

165

Prohibits supervisors from disciplining or discouraging teachers and other educators for reporting inaccuracies or errors or potentially inflammatory material in textbooks or other educational materials to supervisors, elected Teachers, Principals and School officials, or parents or guardians; prohibits Personnel requiring, as a condition of employment, a teacher or other educator to agree not to report inaccuracies or errors or potentially inflammatory material in textbooks or other educational materials.

HB0429

171

Halts the closure at the end of the 2014-2015 school year of charter schools on the state's 2015 priority list; makes the 2017 priority list the first list for which charter schools appearing on a priority list must close at the end of the school year.

HB0125

Schools, Charter

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2015 Public Acts Relative to K-12 Education Chapter Number

Subject

Abstract

Bill Number

Education, Dept. of

Deletes the current schedule for the Tennessee comprehensive assessment program that requires testing to occur during a two-week window by the first Monday on or after April 22; authorizes the commissioner of education to establish a schedule.

SB0088

Education

Permits a local board of education to refuse to accept federal funding for an education program without a penalty being assessed by a state agency or state official, unless such refusal would cause a loss of federal funding for all participating LEAs in the program.

SB0063

Education

Prohibits schools from requiring students or parents to provide information on firearm ownership; prohibits LEAs from requiring employees to provide information on ownership; prohibits adverse disciplinary or employment action based on information of ownership that is voluntarily provided.

SB0633

232

Teachers, Principals and School Personnel

Changes, from "prior to June 15" to "within 5 business days following the last instructional day for the school year" the time within which notices of dismissal or failure of re-election must be provided to teachers.

SB0893

233

Education, State Board of

Prohibits the state board from denying instructional leadership licensure based solely on the applicant completing a leadership preparation program located outside of this state.

SB1088

239

Prohibits certain campaign-related activities by Teachers, Principals and School teachers and certain other public school employees Personnel while on school property.

HB0158

250

Firearms and Ammunition

Allows permit holders to carry handguns in parks and other public recreation areas owned or operated by local governments except when the property is in use by a school for an athletic event or other school-related activity; removes authority of local governments to prohibit handguns in parks.

HB0995

Education

Authorizes and encourages local education agencies to adopt as their course of instruction in character education the Congressional Medal of Honor Character Development Program.

HB1204

184

197

214

251

255

Requires fiscal capacity for BEP purposes of each LEA to be set by May 1 before the next school year Basic Education Program (BEP) begins; prohibits any change in any LEA's fiscal capacity after it is set.

HB0006

256

Students

Allows LEAs to opt out of including the student's TCAP scores in the student's final grades if the LEA doesn't receive the scores at least five instructional days before the end of the school year.

HB0036

260

Education

Requires certain institutions to report nonimmigrant student enrollment to the department of safety.

HB0670

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2015 Public Acts Relative to K-12 Education Chapter Number

Subject

Abstract

Bill Number

Education

Authorizes LEAs, in consultation with local law enforcement, to institute at least one domestic violence awareness education program per year for middle and high schools; requires each program to be developmentally appropriate based on the students' age and maturity level.

HB0830

265

Requires the local board to consider the years of service acquired by a teacher who takes an Teachers, Principals and School extended leave from an LEA to teach in a public Personnel charter school authorized by the LEA, ASD, or state board of education in certain circumstances.

HB0874

266

Textbooks

Requires the textbook commission to study the age and physical status of textbooks used in public schools of this state and issue a written report to the members of the general assembly, by January 1, 2016, detailing the average age, physical condition, and cost to replace outdated textbooks, and solutions to avoiding the use of textbooks that are over 10 years old.

HB0968

286

Students

Requires a school in which a child is a suspected victim of child sexual abuse and the abuse occurred while the child was under the supervision or care of the school to make reasonable accommodations to separate the alleged victim from the alleged perpetrator.

HB1221

303

School Transportation

Increases the permissible size of advertisements on school buses from 16 inches high and 60 inches long to 36 inches high and 90 inches long.

SB0334

304

Teachers, Principals and School Personnel

321

Students

325

Sports

Enacts the "Sudden Cardiac Arrest Prevention Act."

SB0985

Education

Authorizes a local school board to create a policy that excuses students who request to attend a released time course in religious moral instruction taught by an independent entity off school property.

SB1246

Schools, Charter

Allows the governing body of a charter school to choose the insurance plans offered to the school's teachers and other full-time permanent employees; removes requirement that charter school employees participate in the state group insurance plan.

SB0189

263

328

346

357

Students

361

Education

Authorizes the state board of education to make policies concerning the revocation of licenses and certificates for misconduct.

Allows students to self-administer enzymes for cystic fibrosis or pancreatic insufficiency in certain circumstances.

Prohibits an LEA from requiring more than the minimum graduation requirements for students enrolling or transferring in the 11th grade or later who are in the custody of the department of children's services.

Requires the commissioner of education, by October 1 of the year prior to the public identification of priority schools, to notify any school and its respective LEA if the school is among the bottom 10 percent of schools in overall achievement .

3

SB0341 SB0724

SB0537

SB0588

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2015 Public Acts Relative to K-12 Education Chapter Number

390

Subject

Abstract

Bill Number

Education

Prohibits the placement of a school identified as a priority school in the achievement school district if the school makes certain improvements before being assigned to the achievement school district.

SB0758

403

Public Contracts

423

Education, Curriculum

431

Education

445

Students

Increases, from $25,000 to $50,000, the threshold for public works projects that require a registered architect, registered engineer, or registered landscape architect.

Outlines the process for reviewing and adopting new academic standards for Math and English/Language Arts to be implemented in the 2017-2018 school year.

Enacts the "Individualized Education Act." Allows children who will be five years of age after August 15, 2015, but on or before August 31, 2015, and who entered two-year pre-kindergarten programs in the 2013-2014 school year to enter kindergarten programs in the 2015-2016 school year.

SB0978

HB1035 SB0027 SB0303

489

Education

Requires the Tennessee STEM innovation network to establish STEM innovation hubs in rural areas and in Northwest Tennessee; requires the Tennessee STEM innovation network to provide a middle school curriculum on the variety and benefits of STEM careers.

493

Education

Enacts "The Educator Protection Act of 2015."

SB0604

495

Lottery, Scholarships and Programs

Allows recipients of the HiSET high school equivalency credential to be eligible for a Tennessee HOPE scholarship.

SB0624

Students

Requires a student, during the student's high school career, to take a United States civics test prepared by the LEA and consisting of between 25 and 50 questions taken from the civics test administered by the United States citizenship and immigration services.

HB0010

Juvenile Offenders

Authorizes the director of schools to expel or remand a student to an alternative school upon the issuance of a criminal complaint charging a student with a felony or upon the issuance of a felony delinquency complaint against the student; mandates the director of schools to expel a student upon the conviction of a felony or an admission of guilt to that felony delinquency against the student; establishes the notice, hearing, and appeal requirements for students expelled or remanded to an alternative school.

HB0174

Education

Authorizes the achievement school district (ASD) to enroll students who are not zoned to schools on the priority list. Caps the enrollment of such students to 25% of the school population.

HB0473

499

501

507

4

SB0453

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PUBLIC CHAPTER NO. 132 HOUSE BILL NO. 772

By Representative Dunn Substituted for: Senate Bill No. 1229

By Senator Bell

AN ACT to amend Tennessee Code Annotated, Title 4; Title 5; Title 6; Title 7; Title 49, Chapter 1; Title 49, Chapter 2 and Title 49, Chapter 3, relative to school budgets.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 49, Chapter 2, Part 2, is amended by adding the following language as a new section: (a) For purposes of this section, "lobbying expenditures" means funds used to lobby, as defined in ยง 3-6-301, and also includes any dues paid to associations or membership organizations that lobby. (b) A local board of education shall include in its budget for each fiscal year a line item for professional associations and lobbying expenditures that includes the total amount to be spent on lobbying expenditures by the board during that fiscal year. (c) When any local board of education of a county or city school system submits its budget to the appropriate local legislative body for approval, the budget shall have attached a form that details all professional associations and lobbying expenditures included in the budget. The form shall at a minimum specify: (1) The total amount anticipated to be spent on professional associations and lobbying expenditures; (2) The amount of any dues to be paid to entities that lobby, along with the names of such entities; (3) The amount of any funds to be used to hire contract lobbyists; and (4) For the fiscal year beginning in 2017, the actual amount spent on items listed in subdivisions (c)(1)-(3) for the previous fiscal year.

SECTION 2. This act shall take effect July 1, 2016, the public welfare requiring it.

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PUBLIC CHAPTER NO. 158 HOUSE BILL NO. 108

By Representatives McCormick, Kevin Brooks, Mark White, Hardaway, Alexander Substituted for: Senate Bill No. 119

By Senators Norris, Gresham AN ACT to amend Tennessee Code Annotated, Title 49, Chapter 1, Part 3 and Title 49, Chapter 5, Part 5, relative to teacher evaluations.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. This act shall be known and may be cited as the "Tennessee Teaching Evaluation Enhancement Act." SECTION 2. Tennessee Code Annotated, Section 49-1-302(d)(2)(A), is amended by deleting the period at the end of the subdivision and adding the following: ; however, nothing in this subdivision shall require an LEA to use student achievement data based on state assessments as the sole factor in employment decisions.

SECTION 3. Tennessee Code Annotated, Section 49-1-302(d)(2), is amended by adding the following new subdivision: (E) For teachers with access to individual data representative of student growth as specified in subdivision (d)(2)(B)(ii), the following provisions shall apply: (i) In the 2015-2016 school year, the evaluation criteria identified in subdivision (d)(2)(B)(ii) shall be adjusted so that student growth data generated by assessments administered in the 2015-2016 school year shall account for ten percent (1 0%) of the overall evaluation criteria identified in subdivision (d)(2)(B). (ii) In the 2016-2017 school year, the evaluation criteria identified in subdivision (d)(2)(B)(ii) shall be adjusted so that student growth data generated by assessments administered in the 2015-2016 and 2016-2017 school years shall account for twenty percent (20%) of the overall evaluation criteria identified in subdivision (d)(2)(B). (iii) In the 2017-2018 school year and thereafter, the student growth component of the evaluation criteria shall be determined under subdivision (d)(2)(B)(ii). (iv) For the 2015-2016 through 2017-2018 school years, the most recent year of student growth data shall account for the entire percentage of growth data required in a teacher's evaluation if such use results in a higher evaluation score.

SECTION 4. Tennessee Code Annotated, Section 49-1-302(d)(2)(B), is amended by deleting subdivision (vi) in its entirety and replacing it with the following language: (vi) Notwithstanding subdivisions (d)(2)(B)(i) and (ii), for teachers without access to individual growth data representative of student growth as specified in subdivision (d)(2)(B)(ii), thirty percent (30%) of the evaluation criteria shall be composed of student achievement data with fifteen percent (15%) of the evaluation criteria based on student growth data as represented by TVAAS, or some other comparable measure, if no such TVAAS data is available; however, in the 2015-2016 school year, no more than ten percent (10%) of the evaluation criteria shall be based on TVAAS data.

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HB 108

SECTION 5. Tennessee Code Annotated, Section 49-1-302(d), is amended by adding the following new subdivision: (7) Pursuant to state board of education rules and policies, an LEA may utilize either the state board adopted model plan for the qualitative portion of teacher evaluation or an evaluation model that has been proposed by the LEA and approved by the state board of education. Evaluation models approved by the state board of education may, with local board approval, be utilized in any LEA SECTION 6. Tennessee Code Annotated, Section 49-5-503(4), is amended by adding the following language between the ";" and the word "and" at the end of the subdivision: provided, however, that a teacher who has met all other requirements for tenure eligibility but has not acquired an official evaluation score during the last one (1) or two (2) years of the probationary period due to an approved extended leave; transfer to another school or position within the school district; or invalidated data due to a successful local level evaluation grievance pursuant to ยง 49-1-302(d)(2)(A) may utilize the most recent two (2) years of available evaluation scores achieved during the probationary period to meet the provisions of this subdivision (4); SECTION 7. Tennessee Code Annotated, Section 49-5-504(a)(2), is amended by deleting the"." at the end of the subdivision and adding the following language: ; provided, however, that a teacher who has met all other requirements for tenure eligibility but has not acquired an official evaluation score during the last one (1) or two (2) years of the probationary period due to an approved extended leave; transfer to another school or position within the school district; or invalidated data due to a successful local level evaluation grievance pursuant to ยง 49-1-302(d)(2)(A) may utilize the most recent two (2) years of available evaluation scores achieved during the probationary period to meet the provisions of this subdivision (a)(2).

SECTION 8. This act shall take effect upon becoming a law, the public welfare requiring it.

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PUBLIC CHAPTER NO. 184 SENATE BILL NO. 88

By Norris, Tracy, Yager

Substituted for: House Bill No. 78

By McCormick, Kevin Brooks, Dunn, Ragan, Hardaway AN ACT to amend Tennessee Code Annotated, Section 49-6-6002, relative to testing schedules.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 49-6-6002(b), is amended by deleting the subsection in its entirety and substituting instead the following language: (b) The commissioner of education shall establish a schedule for the administration of the Tennessee comprehensive assessment program assessments and meet the provisions ofยง 49-1-226. The commissioner shall have the authority to adjust the schedule for reasons including, but not limited to, natural disaster, prolonged inclement weather, or serious outbreaks of contagious illness.

SECTION 2. This act shall take effect upon becoming a law, the public welfare requiring it.

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PUBLIC CHAPTER NO. 232 SENATE BILL NO. 893

By Briggs

Substituted for: House Bill No. 1031

By Daniel, Hardaway AN ACT to amend Tennessee Code Annotated, Title 49, relative to the employment of teachers.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 49-5-409{b), is amended by deleting the language "prior to June 15" and by substituting instead the language "within five (5) business days following the last instructional day for the school year".

SECTION 2. This act shall take effect July 1, 2015, the public welfare requiring it.

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PUBLIC CHAPTER NO. 239 HOUSE BILL NO. 158

By Representative Casada Substituted for: Senate Bill No. 183

By Senator Hensley AN ACT to amend Tennessee Code Annotated, Title 2, Chapter 19, Part 2; Title 49, Chapter 2 and Title 49, Chapter 5, relative to public school employees.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 2-19-201 (2), is amended by deleting the punctuation ";" and substituting instead the following: . "Public lands, offices, buildings, vehicles, and facilities" include those owned and used by a local education agency (LEA); SECTION 2. Tennessee Code Annotated, Section 2-19-201, is amended by adding the following language as a new, appropriately designated subdivision: "Teacher" means any person employed in a public school system as a teacher, helping teacher, teacher's aide, librarian, principal, supervisor, director of schools, or member of the administrative staff.

SECTION 3. Tennessee Code Annotated, Section 2-19-201 (3), is amended by deleting the language "teachers, as defined byยง 49-1501,".

SECTION 4. Tennessee Code Annotated, Section 2-19-201 (3), is further amended by deleting the punctuation "." at the end of the first sentence in the subdivision and substituting instead", including teachers.".

SECTION 5. Tennessee Code Annotated, Section 2-19-206, is amended by adding the following language as a new, appropriately designated subsection: (d)

(1) Subsections (a), (b), and (c) shall not apply to teachers.

(2) It is unlawful for any teacher to display campaign literature, banners, placards, streamers, stickers, signs, or other items of campaign or political advertising on behalf of any party, committee or agency, or candidate for partisan or nonpartisan public office elected by the people, on the premises of any building or land owned by a local education agency (LEA), or to use any of the facilities of the LEA, including equipment and vehicles, for such purposes. This subdivision (d)(2) does not apply to the display of campaign banners, placards, streamers, stickers, signs, or other items of campaign or political advertising on LEA-owned property or the use of LEA equipment, when the display or use is a part of and solely for the purpose of the LEA's program of student education relative to the electoral process. Except for the use of LEA-owned equipment and vehicles, this subdivision (d)(2) does not apply to a teacher during hours in which the teacher is not performing school duties.

(3) This subsection (d) shall not be construed to prohibit any teacher from displaying a decal or bumper sticker on the teacher's personal vehicle while the vehicle is parked on LEA property.

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HB 158

SECTION 6. Tennessee Code Annotated, Section 2-19-207(b)(2), is amended by deleting the language "persons duly qualified as candidates for public office and teachers, as defined by ยง 49-1501 ," and substituting instead "and persons duly qualified as candidates for public office".

SECTION 7. Tennessee Code Annotated, Section 2-19-207, is amended by adding the following language as a new subsection (c): (c)

( 1) Subsections (a) and (b) shall not apply to teachers.

(2) It is unlawful for any teacher employed by an LEA during those hours of the day when the LEA requires the teacher to be performing school duties to: (A) Engage actively in a political campaign on behalf of any party, committee, organization, or agency; (B) Engage in a campaign for a candidate for partisan or nonpartisan public office elected by the people; (C) Attend political meetings or rallies; (D) Use the teacher's employment to interfere with or affect the result of any regular or special primary election conducted within the state; or (E) Perform political campaign duties or functions.

(3) Nothing in this subsection (c) shall be construed to deprive a teacher from voting for the party or candidate of the teacher's choice or to deprive the teacher of the right to express the teacher's personal opinion concerning any political subject, party, or candidate.

(4) A teacher on leave or during those hours in which the teacher is not required to be performing school duties is not subject to the restrictions in subdivision (c)(2). No policy or rule of an LEA shall be more restrictive of the political activity of a teacher on leave or during those hours in which the teacher is not required to be performing school duties than those restrictions set forth in this subsection (c).

SECTION 8. This act shall take effect July 1, 2015, the public welfare requiring it.

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PUBLIC CHAPTER NO. 250 HOUSE BILL NO. 995

By Representatives Harrison, Holsclaw, Goins, Dunn, Todd, Lundberg, Haynes, Eldridge Substituted for: Senate Bill No. 1171

By Senators Stevens, Gresham, Ketron AN ACT to amend Tennessee Code Annotated, Title 39, Chapter 17, Part 13, relative to the possession of weapons in areas frequented by children.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 39-17-1311(b)(1), is amended by deleting subdivision (H) and substituting instead the following: (H) (i) Persons possessing a handgun, who are authorized to carry the handgun pursuant to ยง 39-17-1351, while within or on a public park, natural area, historic park, nature trail, campground, forest, greenway, waterway, or other similar public place that is owned or operated by the state, a county, a municipality, or instrumentality of the state, a county, or municipality. (ii) Subdivision (b)(1 )(H)(i) shall not apply if the permit holder: (a) Possessed a handgun in the immediate vicinity of property that was, at the time of possession, in use by any board of education, school, college or university board of trustees, regents, or directors for the administration of any public or private educational institution for the purpose of conducting an athletic event or other school-related activity on an athletic field, permanent or temporary, including but not limited to, a football or soccer field, tennis court, basketball court, track, running trail, Frisbee field, or similar multi-use field; and

(b) Knew or should have known the athletic activity or schoolrelated activity described in subdivision (b)(1)(H)(a) was taking place on the property; or

(c) Failed to take reasonable steps to leave the area of the athletic event or school-related activity after being informed of or becoming aware of its use; SECTION 2. Tennessee Code Annotated, Section 39-17-1311, is amended by deleting subsections (c), (d), and (e) in their entireties and redesignating accordingly.

SECTION 3. Tennessee Code Annotated, Section 39-17-1309, is amended by deleting from subdivision (b)(1) and subdivision (c)(1)(A) the language "or any other property owned, used or operated by" and substituting instead the language "or any other property owned, operated, or while in use by".

SECTION 4. Tennessee Code Annotated, Section 39-17-1309, is amended by adding the following new subdivision to subsection (e):

() (A) Persons possessing a handgun, who are authorized to carry the handgun pursuant to ยง 39-17-1351, while within or on a public park, natural area,

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historic park, nature trail, campground, forest, greenway, waterway, or other similar public place.

(B) Subdivision (A) shall not apply if the permit holder: (i) Possessed a handgun on property described in ( )(A) that is owned or operated by a board of education, school, college, or university board of trustees, regents, or directors unless the permit holder's possession is otherwise excepted by this subsection; or (ii) Possessed a handgun in the immediate vicinity of property that was, at the time of possession, in use by any board of education, school, college or university board of trustees, regents, or directors for the administration of any public or private educational institution for the purpose of conducting an athletic event or other school-related activity on an athletic field, permanent or temporary, including but not limited to, a football or soccer field, tennis court, basketball court, track, running trail, Frisbee field, or any similar multi-use field; and (iii) Knew or should have known that: (a) An athletic event or school-related activity described in subdivision (e)( )(B)(ii) was taking place on the property at the time of the possession; or (b) The property on which the possession occurred was owned or operated by a school entity described in (e)( )(B)(ii); or (iv) Failed to take reasonable steps to leave the area of the athletic field or school-related activity or the property after being informed or becoming aware of: (a) Its use for athletic or school-related purposes; or (b) That it was, at the time of the possession, owned or operated by a school entity described in (e)( )(B)(ii).

SECTION 5. Tennessee Code Annotated, Section 39-17-1311, is amended by deleting from subdivision (b)(1)(J)(ii) the word "transversing" and substituting instead the word "traversing".

SECTION 6. Any department of state government may, but is not required to, change, remove, or replace signs as a result of Sections 1 or 4 of this act prior to the time the signs are regularly scheduled to be changed, replaced, or removed or are required to be changed, replaced, or removed by any other law or due to destruction or theft; provided, that the general assembly may specifically provide funds for the purpose of removing or replacing signs in a general appropriations act.

SECTION 7. This act shall take effect upon becoming a law, the public welfare requiring it.

2 32

$>tate of '<!Cennessee PUBLIC CHAPTER NO. 256 HOUSE BILL NO. 36

By Representatives Dunn, Hardaway Substituted for: Senate Bill No. 285

By Senators Briggs, Bowling

AN ACT to amend Tennessee Code Annotated, Title 49, Chapter 1; Title 49, Chapter 2 and Title 49, Chapter 6, relative to student grades.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 49-1-617, is amended by designating the existing language as subsection (a) and adding the following language as new subsection (b): (b) Notwithstanding subsection (a), if an LEA does not receive its students' TCAP scores at least five (5) instructional days before the end of the school year, then the LEA may choose not to include its students' TCAP scores in the students' final grades in the subject areas of mathematics, English language arts, science, and social studies.

SECTION 2. This act shall take effect upon becoming a law, the public welfare requiring it.

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~tate

of \!tennessee

PUBLIC CHAPTER NO. 286 HOUSE BILL NO. 1221

By Representatives Towns, Hardaway, Parkinson Substituted for: Senate Bill No. 656

By Senator Kyle AN ACT to amend Tennessee Code Annotated, Title 37 and Title 49, relative to child sexual abuse occurring while under the care or supervision of a public school.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 49-6-3102, is amended by adding the following language as new, appropriately designated subsections: ( ) If a child who attends a public school is the suspected victim of child sexual abuse as defined in ยง 37-1-602(a)(3) and the abuse occurred while the child was under the supervision or care of the school, then the school shall make reasonable accommodations to separate the alleged victim of child sexual abuse from the alleged perpetrator. ( ) If available and appropriate, the local school board shall, upon request by the parent of the child, reassign a child who attends a public school and is the victim of child sexual abuse as defined inยง 37-1-602(a)(3) when: (1) The abuse occurred while the child was under the supervision or care of the school; and (2) The perpetrator of the abuse is: (A) Substantiated by the department of children's services; (B) Adjudicated by a juvenile court to have committed the child sexual abuse; or (C) Criminally charged.

SECTION 2. This act shall take effect upon becoming a law, the public welfare requiring it.

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PUBLIC CHAPTER NO. 321 SENATE BILL NO. 724

By Green

Substituted for: House Bill No. 659

By Reedy AN ACT to amend Tennessee Code Annotated, Title 49, relative to self-administration of certain prescribed enzymes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 49, is amended by adding the following as a new chapter: (a) As used in this section: (1) "Emergency care plan" (ECP) means a child-specific action plan to facilitate quick and appropriate responses for an individual emergency in the school setting; (2) "Individualized healthcare plan" (IHP) means a written plan of care developed at the local level to outline the provision of student healthcare services intended to achieve specific student outcomes. The IHP is part of the nursing process that is detailed in the National Association of School Nurses Position Statement: Individualized Healthcare Plans, The Role of the School Nurse (2013); (3) "Pancreatic insufficiency" means a disorder of the digestive system.

Pancreatic insufficiency may include the diagnosis of cystic fibrosis, a chronic disease that affects the lungs and digestive system. (b) Self-administration in accordance with this section shall permit a student diagnosed with pancreatic insufficiency or cystic fibrosis to self-manage prescribed pancreatic enzyme therapy in the manner directed by the licensed healthcare provider without additional assistance or direction. (c) An emergency care plan (ECP) may be a component of a student's individualized healthcare plan (IHP). The ECP shall specify when the emergency number (911) will be called and describe a plan of action when the student is unable to self-administer medication or self-manage treatment as prescribed. (d)(1) An IHP under this section shall be developed by a registered nurse (RN) in collaboration with the family, student, student's healthcare providers, and school personnel for the management of pancreatic insufficiency or cystic fibrosis while in school, participating in school-sponsored activities, and in transit to or from school or school-sponsored activities.

(2) The IHP shall be child-specific and shall address or include: (A) A written format for nursing assessment that includes health status, risks, concerns, and strengths; (B) Nursing diagnoses; (C) Interventions;

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(D) Delegation; (E) Training; (F) Expected outcomes; and (G) Goals to: (i) Meet the healthcare needs of a student with pancreatic insufficiency or cystic fibrosis; and (ii) Protect the safety of all students from the misuse or abuse of medication. (e) With written authorization from the healthcare provider and parent, a student with pancreatic insufficiency or cystic fibrosis shall be allowed to carry and self-administer prescribed pancreatic enzymes.

SECTION 2. This act shall take effect July 1, 2015, the public welfare requiring it.

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PUBLIC CHAPTER NO. 325 SENATE BILL NO. 985

By Norris, Massey, Briggs, Crowe, Tate, Yager

Substituted for: House Bill No. 32

By Todd, Fitzhugh, Terry, Favors, Harry Brooks, Mark White, Hardaway, Smith, Powers, Sparks, Armstrong AN ACT to amend Tennessee Code Annotated, Title 68, relative to sudden cardiac arrest prevention.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 68, is amended by adding the following language as a new chapter 54: 68-54-1 01. This act shall be known and may be cited as the "Sudden Cardiac Arrest Prevention Act." 68-54-102. As used in this chapter, unless the context otherwise requires:

(1) "Community-based youth athletic activity" or "youth athletic activity" means an athletic activity organized by a city, county, business, or nonprofit organization when the majority of the participants are under eighteen (18) years of age, and are engaging in an organized athletic game or competition against another team, club, or entity or in practice or preparation for an organized game or competition against another team, club, or entity. "Community-based youth athletic activity" does not include college or university activities or an activity which is entered into for instructional purposes only, an athletic activity that is incidental to a nonathletic program, or a lesson; (2) "Department" means the department of health; (3) "Health care provider" means a Tennessee licensed medical doctor (M.D.) or an osteopathic physician (D.O.); (4) "Person" means any individual or governmental entity, corporation, association, organization, nonprofit institution, or other entity or such entities' representatives; and (5) "School youth athletic activity" means a school or a local education agency organized athletic activity when the majority of the participants are under eighteen (18) years of age, and are engaging in an organized athletic game or competition against another team, club, or entity or in practice or preparation for an organized game or competition against another team, club, or entity. "School youth athletic activity" does not include college or university activities, an activity which is entered into for instructional purposes only, or an athletic activity that is incidental to a nonathletic program, or a lesson.

68-54-103.

(a) This section applies to school youth athletic activity. (b)(1) The governing authority of each public and nonpublic elementary school, middle school, junior high school, and high school, working through

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guidance approved by the department of health and communicated through the department of education, shall at a minimum: (A) Adopt guidelines and other pertinent information and forms as approved by the department of health to inform and educate coaches, school administrators, youth athletes, and their parents or guardians of the nature, risk, and symptoms of sudden cardiac arrest, including the risks associated with continuing to play or practice after experiencing any of the following symptoms: (i) Fainting or seizures during exercise; (ii) Unexplained shortness of breath; (iii) Chest pains;

(iv) Dizziness; (v) Racing heart rate; or (vi) Extreme fatigue; (B) Require annual completion by all coaches, whether the coach is employed or a volunteer, and by school athletic directors of a sudden cardiac arrest education program approved by the department.

In developing the program, the department may use, at no cost to the state, materials and resources created by organizations, such as Simon's Fund, for the purpose of educating coaches about sudden cardiac arrest. The department shall make the sudden cardiac arrest education course program available on its web site for any school to access free of charge; (C) Require that, on a yearly basis, a sudden cardiac arrest information sheet be signed and returned by each coach and athletic director and, if appointed, a licensed health care professional, to the lead administrator of a nonpublic school or, for a public school, the local education agency's director of schools prior to initiating practice or competition for the year; (D) Require that, on a yearly basis, a sudden cardiac arrest information sheet be reviewed by each youth athlete and the athlete's parent or guardian. The information sheet shall be signed and returned by the youth athlete, if the youth athlete is eighteen (18) years of age or older, otherwise by the athlete's parent or guardian, prior to the youth athlete's initiating practice or competition, to confirm that both the parent or guardian and the youth athlete have reviewed the information and understand its contents; (E) Maintain all documentation of the completion of a sudden cardiac arrest education course program and signed sudden cardiac arrest information sheets for a period of three (3) years; (F) Establish as policy the immediate removal of any youth athlete who passes out or faints while participating in an athletic activity or immediately following an athletic activity, or who exhibits any of the following symptoms: (i) Unexplained shortness of breath; (ii) Chest pains; (iii) Dizziness; (iv) Racing heart rate; or (v) Extreme fatigue; and (G) Establish as policy that a youth athlete who has been removed from play shall not return to the practice or competition during which the youth athlete experienced symptoms consistent with sudden

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cardiac arrest and not return to play or participate in any supervised team activities involving physical exertion, including games, competitions, or practices, until the youth athlete is evaluated by a health care provider and receives written clearance from the health care provider for a full or graduated return to play.

(2) After a youth athlete who has experienced symptoms consistent with sudden cardiac arrest has been evaluated and received clearance for a graduated return to play from a health care provider, then a school may allow a licensed health care professional, if available, with specific knowledge of the youth athlete's condition to manage the youth athlete's graduated return to play based upon the health care provider's recommendations. The licensed health care professional, if not the youth athlete's health care provider, shall provide updates to the health care provider on the progress of the youth athlete, if requested.

(3) No licensed health care professional or other person acting in good faith within the authority prescribed under this act shall be liable on account of any act or omission in good faith while so engaged; provided, that "good faith," as used in this act, shall not include willful misconduct, gross negligence, or reckless disregard. (c) The local education agency, in consultation with the head of the school youth athletic activity, may establish the following minimum penalties for a coach found in violation of ignoring a youth athlete's sudden cardiac arrest symptoms or allowing the youth to return to the practice or competition during which the youth athlete experienced the symptoms without written clearance from the health care provider for a full or graduated return to play: (1) For a first violation, suspension from coaching any school youth athletic activity for the remainder of the season; (2) For a second violation, suspension from coaching any school youth athletic activity for the remainder of the season and the next season; and (3) For a third violation, permanent suspension from coaching any school youth athletic activity.

68-54-104.

(a) This section applies to community-based youth athletic activity. (b)(1) Any city, county, business, or nonprofit organization that organizes a community-based youth athletic activity for which an activity fee is charged, working through guidance from the department of health, shall at a minimum: (A) Adopt guidelines and other pertinent information and forms as developed by the department of health to inform and educate the director of the youth athletic activity, coaches, youth athletes, and their parents or guardians of the nature, risk, and symptoms of sudden cardiac arrest, including the risks associated with continuing to play or practice after experiencing any of the following symptoms: (i) Fainting or seizures during exercise; (ii) Unexplained shortness of breath; (iii) Chest pains; (iv) Dizziness; (v) Racing heart rate; or (vi) Extreme fatigue; (B) Require annual completion by all coaches, whether the coach is employed or a volunteer, and, if appointed, the licensed health care professional of a sudden cardiac arrest education program approved by the department. In developing the program, the department may use, at no cost to the state, materials and resources

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created by organizations, such as Simon's Fund, for the purpose of educating coaches about sudden cardiac arrest. The department shall make the sudden cardiac arrest education course program available on its web site for any youth athletic activity operated by a city, county, business, or nonprofit organization to access free of charge; (C) Require that, on a yearly basis, a sudden cardiac arrest information sheet be signed and returned by each coach to the head of the youth athletic activity prior to initiating practice or competition for the year; (D) Require that, on a yearly basis, a sudden cardiac arrest information sheet be reviewed by each youth athlete and the athlete's parent or guardian. The information sheet shall be signed and returned by the youth athlete, if the youth athlete is eighteen (18) years of age or older, otherwise by the athlete's parent or guardian, prior to the youth athlete's initiating practice or competition, to confirm that both the parent or guardian and the youth athlete have reviewed the information and understand its contents; (E) Maintain all documentation of the completion of a sudden cardiac arrest education course program and signed sudden cardiac arrest information sheets for a period of three (3) years; (F) Establish as policy the immediate removal of any youth athlete who passes out or faints while participating in an athletic activity or immediately following an athletic activity, or who exhibits any of the following symptoms: (i) Unexplained shortness of breath; (ii) Chest pains;

(iii) Dizziness; (iv) Racing heart rate; or (v) Extreme fatigue; and (G) Establish as policy that a youth athlete who has been removed from play shall not return to the practice or competition during which the youth athlete experienced symptoms consistent with sudden cardiac arrest and not return to play or participate in any supervised team activities involving physical exertion, including games, competitions, or practices, until the youth athlete is evaluated by a health care provider and receives written clearance from the health care provider for a full or graduated return to play.

(2) After a youth athlete who has experienced symptoms consistent with sudden cardiac arrest has been evaluated and received clearance for a graduated return to play from a health care provider, then the organizer of the community-based youth athletic activity may allow a licensed health care professional, if available, with specific knowledge of the youth athlete's condition to manage the youth athlete's graduated return to play based upon the health care provider's recommendations. The licensed health care professional, if not the youth athlete's health care provider, shall provide updates to the health care provider on the progress of the youth athlete, if requested.

(3) No coach, head of any athletic activity, licensed health care professional, or other person acting in good faith within the authority prescribed under this act shall be liable on account of any act or omission in good faith while so engaged; provided, that "good faith," as used in this act, shall not include willful misconduct, gross negligence, or reckless disregard. (c) The head of the community-based youth athletic activity may establish the following minimum penalties for a coach found in violation of ignoring a youth athlete's sudden cardiac arrest symptoms or allowing the youth to return to the practice or competition during which the youth athlete experienced the symptoms

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without written clearance from the health care provider for a full or graduated return to play: (1) For a first violation, suspension from coaching any communitybased youth athletic activity for the remainder of the season; (2) For a second violation, suspension from coaching any communitybased youth athletic activity for the remainder of the season and the next season; and (3) For a third violation, permanent suspension from coaching any community-based youth athletic activity.

SECTION 2. This act shall take effect January 1, 2016, the public welfare requiring it.

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PUBLIC CHAPTER NO. 357 SENATE BILL NO. 537

By Gresham Substituted for: House Bill No. 567

By DeBerry, Turner, Hardaway, Parkinson, Mark White AN ACT to amend Tennessee Code Annotated, Title 49, Chapter 6, Part 60, relative to high school diplomas for children in foster care.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 49-6-6001, is amended by adding the following language as a new subsection: No LEA shall require any enrolling or transferring student, who is in grade eleven (11) or higher and in the custody of the department of children's services or exiting its custody, to meet more than the minimum requirements "for graduation set forth by the state board of education. The LEA shall issue a full diploma to any such student who meets the minimum requirements.

SECTION 2. This act shall take effect July 1, 2015, the public welfare requiring it.

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PUBLIC CHAPTER NO. 361 SENATE BILL NO. 588

By Tate, Bowling, Gardenhire, Harper

Substituted for: House Bill No. 735

By Love, Pitts, Beck, Shepard, Cooper, Towns, Akbari, Favors, Hardaway, Gilmore, Clemmons, Stewart AN ACT to amend Tennessee Code Annotated, Section 49-1-602, relative to priority schools.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 49-1-602(b), is amended by adding the following language as a new subdivision (3) and redesignating the subsequent subdivisions accordingly: (3) By October 1 of the year prior to the public identification of priority schools pursuant to subdivision (b)(1), the commissioner shall notify any school and its respective LEA if the school is among the bottom ten percent (10%) of schools in overall achievement as determined by the performance standards and other criteria set by the state board.

SECTION 2. This act shall take effect July 1, 2015, the public welfare requiring it.

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$)tate of {![enne.s.see PUBLIC CHAPTER NO. 423 HOUSE BILL NO. 1035

By Representatives Spivey, Forgety, Harwell, Lollar, Coley, Todd, McManus, Sanderson, Hulsey, Matheny, Shepard, Wirgau, McDaniel, Calfee, Kane, Womick, Powers, Hawk, Matlock, Jerry Sexton, Casada, Moody, Mark White, Marsh, Ramsey, Dawn White, Swann, Johnson, Dunn, Sargent, Byrd, Holt, Littleton, Hazlewood, Kumar, Carter, Harry Brooks, Faison, Wilburn, Eldridge, Butt, Lamberth, Kevin Brooks, Alexander, Smith, Travis, Sparks, Durham Substituted for: Senate Bill No. 1163

By Senators Bell, Massey, Bowling, Green, Hensley, Norris, Stevens, Tracy AN ACT to amend Tennessee Code Annotated, Title 49, relative to curriculum standards.

WHEREAS, the state board of education shall implement a process whereby the set of standards known as Common Core State Standards adopted in 2010 will be reviewed and shall be replaced with a new set of Tennessee standards adopted to meet or exceed the postsecondary and workforce needs of Tennessee students; and WHEREAS, these standards shall be adopted through an open, transparent process that allows all Tennesseans an opportunity to participate; and WHEREAS, these new Tennessee academic standards shall be adopted and fully implemented in Tennessee public schools in the 2017-2018 school year, at which time the previously adopted set of standards shall be rescinded; now, therefore, BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 49, Chapter 1, Part 3, is amended by adding the following language as a new section: (a) (1) The state board of education shall implement a process whereby the set of standards known as the Common Core State Standards adopted in 2010 will be reviewed and shall be replaced with new sets of standards adopted to fit the needs of Tennessee students. These postsecondary-and-workforce-ready standards shall be adopted through an open, transparent process that allows all Tennesseans an opportunity to participate. These standards shall be adopted and fully implemented in Tennessee public schools in the 2017-2018 school year.

(2) The state board of education or the department of education shall cancel any memorandum of understanding concerning the Common Core State Standards entered into with the National Governor's Association and the Council of Chief State School Officers. (b) As required by the current established process: (1) The state board shall appoint two (2) standards review and development committees. One (1) committee shall be an English language arts standards review and development committee, and one (1) committee shall be a mathematics standards review and development committee. Each committee shall be composed of two (2) representatives from institutions of higher education located in the state and six (6) educators who reside in the state and work in grades kindergarten through twelve (K-12);

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(2) The state board shall also appoint six (6) advisory teams. Three (3) advisory teams shall advise and assist the English language arts standards review and development committee, and three (3) advisory teams shall advise and assist the mathematics standards review and development committee. The advisory teams shall be structured by grade levels, so that one (1) advisory team reviews standards for kindergarten through grade five (K-5), one (1) for grades six through eight (6-8), and one (1) for grades nine through twelve (9-12) in each subject. Each advisory team shall be composed of one (1) representative from an institution of higher education located in the state and six (6) educators who reside in the state and work in the appropriate grade levels and subject; (3) The public's assistance in reviewing the current standards and suggesting changes to the current standards shall be elicited through a web site that shall allow comment by the public, as well as by educators, on the current standards. A third-party, independent educational resource, selected by the state board, shall collect all of the data and transmit all of the information gathered to the state board for dissemination to the appropriate advisory team for review and consideration; (4) Each advisory team shall review the current standards for its subject matter and grade level together with the comments and suggestions gathered from the public and educators. After an advisory team has conducted its review, the team shall make recommendations for changes to the current standards to the appropriate standards review and development committee; and (5) Each standards review and development committee shall review its advisory teams' reports and make recommendations for the new set of standards to the standards recommendation committee created in subsection (c). (c) There is created a standards recommendation committee. The committee shall be composed of ten (10) members. The governor shall appoint four (4) members, the speaker of the senate shall appoint three (3) members, and the speaker of the house of representatives shall appoint three (3) members. The standards recommendation committee shall review and evaluate the recommendations of the two (2) standards review and development committees and post the recommendations to the web site created pursuant to subdivision (b)(3) for the purpose of gathering additional feedback from the public. The standards recommendation committee shall make the final recommendations as to the new set of standards to the state board, which shall adopt sets of standards in English language arts and mathematics that fit the needs of Tennessee students in kindergarten through grade twelve (K-12). (d) Prior to the next adoption of academic standards in the subjects of science and social studies, the state board of education shall establish a process whereby the board shall receive recommendations from a standards recommendation committee appointed in the same manner as the standards recommendation committee created in subsection (c). The standards recommendation committee shall make the final recommendations as to the revision and replacement of the current sets of standards in these subject areas to the state board, which shall adopt sets of standards in science and social studies that fit the needs of Tennessee students in kindergarten through grade twelve (K-12); (e) Each LEA shall be responsible for developing and implementing the instructional programs under the state standards adopted by the state board that best fit its students' educational needs, that achieve levels of proficiency or advanced mastery, and that vigorously promote individual teacher creativity and autonomy. (f) All appointments made pursuant to subsection (c) for the standards recommendation committee shall be subject to confirmation by the senate and the house of representatives, but appointments shall be effective until adversely acted upon by the senate and the house of representatives.

SECTION 2. This act shall take effect upon becoming a law, the public welfare requiring it.

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PUBLIC CHAPTER NO. 431 SENATE BILL NO. 27

By Gresham, Ketron, Haile, Kelsey, Stevens, Bowling Substituted for: House Bill No. 138

By Moody, Kane, Holt, Weaver, Timothy Hill, Todd, Keisling, Daniel, Goins, Powers, Durham, Wilburn, Littleton, Lynn AN ACT to amend Tennessee Code Annotated, Title 49, to enact the "Individualized Education Act." BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 49, Chapter 10, is amended by adding Sections 2-7 as a new part.

SECTION 2. This part shall be known and may be cited as the "Individualized Education Act." SECTION 3. As used in this part, unless the context otherwise requires: (1) "Department" means the department of education; (2) "Eligible postsecondary institution" means a community college or university of the University of Tennessee system or the board of regents system or an accredited private postsecondary institution; (3) "Eligible student" means a resident of this state who: (A) Is a child with any of the following disabilities: (i) Autism; (ii) Deaf-blindness; (iii) Hearing impairments; (iv) Intellectual disability; (v) Orthopedic impairments; (vi) Traumatic brain injury; or (vii) Visual impairments; (8) Has an individualized education program (IEP) in effect at the time the department receives the request for participation in the program; and

(C) Meets at least one (1) of the following requirements: (i) Was previously enrolled in a Tennessee public school during the two (2) semesters immediately preceding the semester in which the student receives an individualized education account (IEA); (ii) Is attending a Tennessee public school for the first time; or

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8827 (iii) Received an individualized education account (IEA) in the previous school year; (4) "IEA" means an individualized education account; (5) "Parent" means the parent, legal guardian, person who has custody of the child, or person with caregiving authority for the child; (6) "Participating school" means a nonpublic school that meets the requirements established in this part and seeks to enroll eligible students; (7) "Participating student" means an eligible student whose parent is participating in the individualized education account (IEA) program; and (8) "Program" means the individualized education account (IEA) program created in this part.

SECTION 4. (a) A parent of an eligible student shall qualify to participate in the program if the parent signs an agreement promising: (1) To provide an education for the participating student in at least the subjects of reading, grammar, mathematics, social studies, and science; and (2) Not to enroll the parent's eligible student in a public school and to release the LEA in which the student resides and is zoned to attend from all obligations to educate the student. Participation in the program shall have the same effect as a parental refusal to consent to the receipt of services under 20 U.S.C. ยง 1414 of the Individuals with Disabilities Education Act (IDEA). (b) Parents shall agree to use the funds deposited in a participating student's IEA for any, or any combination, of the following expenses of the participating student: (1) Tuition or fees at a participating school; (2) Textbooks required by a participating school; (3) Tutoring services provided by a tutor accredited by a state, regional, or national accrediting organization; (4) Payment for purchase of curriculum, including any supplemental materials required by the curriculum; (5) Fees for transportation paid to a fee-for-service transportation provider; (6) Tuition or fees for a nonpublic online learning program or course; (7) Fees for nationally standardized norm-referenced achievement tests, Advanced Placement examinations, or any examinations related to college or university admission; (8) Contributions to a Coverdell education savings account established under 26 U.S.C. ยง 530 for the benefit of the participating student, except that funds used for elementary or secondary education expenses shall be for expenses otherwise allowed under this section; (9) Educational therapies or services for participating students from a licensed or accredited practitioner or provider, including licensed or accredited paraprofessionals or educational aides; (10) Services provided under a contract with a public school, including individual classes and extracurricular programs; (11) Tuition or fees at an eligible postsecondary institution; (12) Textbooks required for courses at an eligible postsecondary institution; (13) Fees for the management of the IEA by private financial management firms; or

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SB27 (14) Computer hardware or other technological devices approved by the department or a physician, if the computer hardware or other technological device is used for the student's educational needs. (c) Parents may make payments for the costs of educational programs and services not covered by the funds in their IEA. (d) Parents are encouraged, when selecting appropriate educational placements for their students, to consider participating schools with inclusive educational settings that educate students with disabilities and students without disabilities together. A participating school shall notify the department whether the school provides inclusive educational settings.

The department shall indicate those schools that provide inclusive educational settings in its posting of participating schools on its web site under subdivision (a)(7) of Section 6. (e) For participating students in grades three through eight (3-8), a parent shall ensure that the student is annually administered either a nationally norm-referenced test identified by the department or the Tennessee comprehensive assessment program (TCAP) tests or any future replacements of the TCAP tests. The tests should, at a minimum, measure learning in mathematics and English language arts. Results of the testing shall be reported to the parent. Students with disabilities for whom standardized testing is not appropriate, as determined on the student's IEP, are exempt from this requirement.

(f) For purposes of continuity of educational attainment, a student who enrolls in the program shall remain eligible until the participating student returns to a public school, graduates from high school, or reaches twenty-two (22) years of age by August 15 for the next school year, whichever occurs first. (g) Notwithstanding subdivision (a)(2) that requires a parent to agree not to enroll the parent's eligible student in a public school, a participating student may return to the student's LEA at any time after enrolling in the program in compliance with rules promulgated by the state board of education. The state board of education shall promulgate rules providing the least disruptive process for the return of a participating student to the student's LEA. Upon a participating student's return to the student's LEA, the student's IEA shall be closed, and any remaining funds shall be returned to the state treasurer to be placed in the basic education program (BEP) account of the education trust fund of 1992 under §§ 49-3-357 and 49-3-358. (h) Any funds remaining in a student's IEA upon graduation from high school may be used to attend or take courses from an eligible postsecondary institution, with qualifying expenses subject to the applicable conditions of subsection (b). (i) Upon a participating student's graduation from a postsecondary institution or after any period of four (4) consecutive years after high school graduation in which the student is not enrolled in an eligible postsecondary institution, the participating student's IEA shall be closed, and any remaining funds shall be returned to the state treasurer to be placed in the basic education program (BEP) account of the education trust fund of 1992 under §§ 49-3357 and 49-3-358.

U) Funds received pursuant to this part do not constitute income taxable to the parent of the participating student or to the student under title 67, chapter 2.

SECTION 5. (a) A school, private tutor, eligible postsecondary institution, or other educational provider that serves a participating student shall not refund, rebate, or share funds from an IEA with a parent or participating student in any manner. The funds in an IEA may be used only for educational purposes. Participating schools, postsecondary institutions, and education providers that enroll participating students shall provide parents with a receipt for all qualifying expenses at the school or institution. (b) To ensure that students are treated fairly and kept safe, all participating schools shall: (1) Comply with all health and safety laws or codes that apply to nonpublic schools; (2) Certify that they shall not discriminate against students or applicants on the basis of race, color, or national origin; and (3) Conduct criminal background checks on employees. The participating school then shall:

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8827 (A) Exclude from employment any person not permitted by state law to work in a nonpublic school; and (B) Exclude from employment any person who might reasonably pose a threat to the safety of students. (c) The department may suspend or terminate a school from participating in the program, if the department determines the school has failed to comply with the requirements of this section. If the department suspends or terminates a school's participation, the department shall notify affected participating students and their parents of the decision. If a participating school is suspended or if a participating school withdraws from the program, affected participating students remain eligible to participate in the program.

SECTION 6. (a) In administering the IEA program, the department shall: (1) Remit funds to a participating student's IEA account on a quarte~ly basis.

Any funds awarded under this part shall be the entitlement of only the eligible student under the supervision of the student's parent. The maximum annual amount to which an eligible student is entitled under this part shall be equal to the amount representing the per pupil state and local funds generated and required through the basic education program (BEP) for the LEA in which the student resides and is zoned to attend plus the special education funds from the BEP that the participating student would otherwise be entitled to under the student's particular IEP. For the purpose of funding calculations, each eligible student who participates in the program shall be counted in the enrollment figures for the LEA in which the student resides and is zoned to attend. The IEA funds shall be subtracted from the state funds otherwise payable to the LEA; (2)(A) Create a standard form that a parent of a student may submit to establish the student's eligibility for an IEA. The department shall make the supplication application readily available to interested families through various sources, including the Internet; and (B) In accordance with state board of education rules promulgated in consultation with the department of education and the department of health, create an application and approval process for nonpublic schools and providers to become participating schools and participating providers; (3) Establish application and participation timelines that shall maximize student and school participation; (4) Provide parents of participating students with a written explanation of the allowable uses of IEAs, the responsibilities of parents, and the duties of the department; (5) Ensure that lower-income families are made aware of the program and their children's potential eligibility; (6) Adopt policies necessary for the administration of the IEA program, including: (A) Policies for conducting or contracting for random, quarterly, and annual reviews of accounts; (B) Policies for establishing or contracting for the establishment of an online anonymous fraud reporting service; and (C) Policies for establishing an anonymous telephone hotline for reporting fraud; and (7) Post on its web site a list of participating schools for each school year, the grades taught in the school. and other information that the department determines shall assist parents in selecting participating schools for their children. (b) The department may deduct an amount up to four percent (4%) from appropriations used to fund IEAs to cover the costs of overseeing the funds and administering the program.

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SB27 (c) In compliance with all state and federal student privacy laws, an LEA shall provide a participating school that has admitted an eligible student under this part with a complete copy of the student's school records in the possession of the LEA. SECTION 7. (a) A participating school is autonomous and not an agent of the state or federal government. (b) Neither the department nor any other state agency may regulate in any way the educational program of a participating nonpublic school or education provider that accepts funds from the parent of a participating student. (c) The creation of the individualized education account (IEA) program does not expand the regulatory authority of the state, its officers, or any LEA to impose any additional regulation of nonpublic schools or education providers beyond those necessary to enforce the requirements of the program. (d) Participating nonpublic schools and education providers shall be given the maximum freedom to provide for the educational needs of their students without governmental control. Neither a participating nonpublic school nor an education provider shall be required to alter its creed, practices, admissions policies, or curriculum in order to accept participating students. (e) In any legal proceeding challenging the application of this part to a participating school, the state bears the burden of establishing that the law is necessary and does not impose any undue burden on participating schools.

SECTION 8. The state board is authorized to promulgate rules, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to effectuate the purposes of this part; provided, that the state board shall not promulgate any emergency rule, pursuant to 搂 4-5208, for the implementation of this part prior to August 1, 2016.

SECTION 9. If any provision of this act or its application to any person or circumstance is held invalid, then such invalidity shall not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to that end the provisions of this act shall be severable.

SECTION 10. This act shall take effect upon becoming a law for purposes of promulgating rules and procedures, the public welfare requiring it. For all other purposes, including development by the department of education of administrative procedures to effectuate the first award of individualized education accounts during the 2016-2017 school year, this act shall take effect January 1, 2016, the public welfare requiring it.

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PUBLIC CHAPTER NO. 493 SENATE BILL NO. 604

By Norris, Crowe, Haile

Substituted for: House Bill No. 645

By McCormick, Kevin Brooks, Hazlewood, Todd, Lynn, Littleton, Durham AN ACT to amend Tennessee Code Annotated, Title 9, Chapter 8, to enact the Educator Protection Act. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 9, Chapter 8, is amended by adding the following language as a new, appropriately designated part: 9-8-501. This part shall be known and may be cited as "The Educator Protection Act of 2015."

9-8-502. The purpose of this part is to create the Tennessee educator liability fund to provide excess professional liability insurance coverage for all teachers and student teachers, subject to the appropriations of the general assembly. The fund shall protect against damages for claims arising out of the performance of teachers' and student teachers' duties within the scope of their employment or assignment. The fund shall be administered by the board of claims.

9-8-503.

(a) As used in this part, unless the context otherwise requires: (1) "Fund" means the Tennessee educator liability fund; (2) "Student teacher" means an individual enrolled as a student in an institution of higher education approved by the state board of education for teacher training, who is jointly assigned by the institution of higher education and either a local board of education or a charter school to teach under the direction of a licensed teacher employed by the local board of education or the charter school.

(3) "Teacher": (A) Means any individual employed by a local board of education in a position that requires a license issued by the department of education for service in public elementary and secondary schools of this state, supported, in whole or in part, by local, state, or federal funds; and (B) Includes an individual employed at a public charter school in a position that requires a license issued by the department of education for service in a public elementary and secondary school of this state. (b) For the purposes of this part, teachers and student teachers shall not be considered "state employees" as defined in ยง 8-42-101.

9-8-504.

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SB604

(a) The Tennessee educator liability fund shall be established as a separate account in the state treasury and shall be separate and apart from the risk management fund established byยง 9-8-109. (b) The fund shall be funded from appropriations by the general assembly, and shall include interest earned on the appropriated money. Appropriations to the fund may be adjusted based on the number of claims filed and amounts paid from the fund. Amounts remaining in the fund at the end of each fiscal year, including interest, shall not revert to the general fund. (c) Moneys in the fund shall be invested by the state treasurer pursuant to chapter 4, part 6, of this title, for the sole benefit of the fund.

9-8-505.

(a) Notwithstanding any provision of law to the contrary and in addition to the board of claims' authority set forth in ยง 9-8-108, the board of claims is authorized to: (1) Establish the type or types of insurance and the insurance limits as excess insurance coverage necessary to carry out the purposes of this part; (2) Purchase or procure the insurance policy or policies with the fund as the insured; (3) Establish the effective date for which insurance coverage will be provided; (4) Enter into contracts with financial consultants, actuaries, auditors, investment managers, individual attorneys, law firms, and other consultants and professionals as necessary to effectuate the purposes of this part; (5) Establish the process for the administration of claims filed pursuant to this part; (6) Recommend annually to the commissioner of finance and administration the total occurrence basis funding required to satisfy the liabilities arising under this part; and (7) Promulgate rules that are necessary to carry out the purpose and intent of this part.

9-8-506.

(a) Coverage provided under this part shall automatically cover all full-time and part-time teachers and student teachers at no cost to the teachers or student teachers. (b) The expenses paid from the fund shall include the costs associated with the administration of the fund, including, but not limited to, any insurance policy, policies, or contracts that may be authorized by the board of claims. (c) Pursuant to this part, the insurance policy or policies that may be purchased or procured, and the contracts that may be executed, shall cover incidents that have occurred on or after the effective date of this act.

SECTION 2. If any provision of this act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to that end, the provisions of this act are declared to be severable.

SECTION 3. This act shall take effect upon becoming a law, the public welfare requiring it.

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$)tate of Z!rennessee PUBLIC CHAPTER NO. 499 HOUSE BILL NO. 10

By Representatives McCormick, Parkinson, Lollar, Reedy, Kumar, Rogers, Kevin Brooks, Weaver, Pody, Hardaway, Marsh, Hazlewood, Powers, Mark White, Camper, Carter, Littleton, Lynn, McManus, Butt, Akbari, Favors, Sparks, Kane, Miller, Johnson, Daniel Substituted for: Senate Bill No. 10

By Senators Norris, Kelsey, Stevens AN ACT to amend Tennessee Code Annotated, Title 49, Chapter 1; Title 49, Chapter 2 and Title 49, Chapter 6, relative to civics education.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 49, Chapter 6, Part 4, is amended by adding the following language as a new section: (a) Beginning January 1, 2017, except as provided in subsection (c), a student, during the student's high school career, shall be given a United States civics test composed of questions from the one hundred (100) questions that are set forth within the civics test administered by the United States citizenship and immigration services to persons seeking to become naturalized citizens. (b) An LEA shall prepare a test for its students composed of at least twenty-five (25) questions and no more than fifty (50) questions from those questions described in subsection (a). The LEA may prepare multiple versions of the test for use in different schools and at different times. (c) A public high school may provide each student with the opportunity to take the test as many times as necessary for the student to pass the test. A student who has an individualized education program (IEP) under which the civics test is determined to be an inappropriate requirement for the student shall not be required to take and pass the civics test. (d) A student shall pass the test if the student correctly answers at least seventy percent (70%) of the questions. (e) A school all of whose seniors receiving a regular diploma, except for those exempted from taking the test under subsection (c), make a passing grade on the United States civics test required under subsection (a) shall be recognized on the department's web site as a United States civics all-star school for that school year.

SECTION 2. This act shall take effect January 1, 2017, the public welfare requiring it.

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~tate of 'Qtenne.s.see PUBLIC CHAPTER NO. 501 HOUSE BILL NO. 174

By Representative Butt Substituted for: Senate Bill No. 182

By Senator Hensley

AN ACT to amend Tennessee Code Annotated, Title 37 and Title 49, Chapter 6, relative to student discipline.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Title 49, Chapter 6, is amended by adding the following language as a new, appropriately designated part: (a) As used in this section: (1) "Director of schools" or "director" means the director of schools, or the director's designee, in the county, city, town, or special school district; (2) "Expel" or "expulsion" means removal from attendance for more than ten (10) consecutive days or more than fifteen (15) days in a month of school attendance; (3) "Principal": (A) Means the administrative head of a public school, by whatever title the person may be known; and (B) Includes the principal, principal-teacher, assistant principal, or principal's designee; (4) "Remand" means assignment to an alternative school; and (5) "Violent felony" has the same meaning as defined inยง 40-35-321 (e). (b) Upon the issuance of a criminal complaint charging a student with a violent felony or upon the issuance of a violent felony delinquency complaint against a student, the director of schools of a school in which the student is enrolled may expel or remand the student to an alternative school for a period of time determined appropriate by the director of schools if the director determines that the student's continued presence in school would have a substantial detrimental effect on the general welfare of the school. (c) Upon a student being convicted of a violent felony or upon an adjudication or admission in court of guilt with respect to a violent felony or violent felony delinquency, the director of schools of a school in which the student is enrolled shall expel the student if the director of schools determines that the student's continued presence in school would have a substantial detrimental effect on the general welfare of the school. (d) Upon the occurrence of subsection (b) or (c), the director of schools shall immediately give written or actual notice to the parent or guardian and the student of the right to appeal the decision to expel or remand the student to an alternative school. All appeals shall be filed, orally or in writing, within five (5) days after receipt of the notice and may be filed by the parent or guardian, the student, or any person holding a teaching license who is employed by the school system if requested by the student. (e) The appeal from this decision shall be to the board of education or to a disciplinary hearing authority appointed by the board. The disciplinary hearing authority,

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HB 174

if appointed, shall consist of at least one (1) licensed employee of the LEA, but no more than the number of members of the local board.

(f) The hearing shall be held no later than ten (10) days after the beginning of the expulsion or remand. The local board of education or the disciplinary hearing authority shall give written notice of the time and place of the hearing to the parent or guardian, the student, principal, and director of schools who ordered the expulsion or remand.

Notice shall also be given to the LEA employee referred to in subsection (d) who requests a hearing on behalf of a student who is expelled or remanded. (g) After the hearing, the board of education or the disciplinary hearing authority may affirm the decision of the director of schools, order removal of the expulsion, remand unconditionally, or, upon such terms and conditions as it deems reasonable, assign the student to an alternative program or night school, or suspend the student for a specified period of time. (h) If the decision is determined by a disciplinary hearing authority, a written record of the proceedings, including a summary of the facts and the reasons supporting the decision, shall be made by the disciplinary hearing authority. The student or principal may, within five (5) days of the decision, request review by the board of education; provided, that local school board policy may require an appeal to the director of schools prior to a request for review to the board. Absent a timely appeal, the decision shall be final. The board of education, based upon a review of the record, may grant or deny a request for a board hearing and may affirm or overturn the decision of the disciplinary hearing authority with or without a hearing before the board; provided, that the board may not impose a more severe penalty than that imposed by the disciplinary hearing authority without first providing an opportunity for a hearing before the board. If the board conducts a hearing as a result of a request for review by a student, principal, principalteacher, or assistant principal, then, notwithstanding the open meetings laws compiled in title 8, chapter 44, or other law to the contrary, the hearing shall be closed to the public, unless the student or student's parent or guardian requests in writing within five (5) days after receipt of written notice of the hearing that the hearing be conducted as an open meeting. If the board conducts a hearing as a result of a request for review by a student or principal that is closed to the public, then the board shall not conduct any business, discuss any subject, or take a vote on any matter other than the appeal to be heard.

Nothing in this subsection (h) shall exclude the department of children's services from the disciplinary hearings when the department is exercising its obligations underยง 37-1140. The action of the board of education shall be final. (i) In the event the expulsion or remand occurs during the last ten (10) days of any term or semester, the student may be permitted to take final examinations or submit required work that is necessary to complete the course of instruction for that term or semester, subject to the action of the director or the final action of the board of education upon any appeal from an order of a principal continuing an expulsion or remand.

0) The director of schools shall have the sole authority to readmit a student who is expelled or remanded to an alternative school pursuant to subsection (b) or (c) to the school in which the student was enrolled prior to the expulsion or remand. (k) Nothing in this section shall require an LEA to enroll a student who is expelled or remanded in an LEA in either this state or another state. The director of schools for the school system in which the expelled or remanded student requests enrollment shall make a recommendation to the local board of education to approve or deny the request.

The recommendation shall occur only after investigation of the facts surrounding the expulsion or remand from the former school system. If the recommendation is to deny admission and if the local board approves the director of schools' recommendation, the director of schools shall, on behalf of the board of education, notify the commissioner of the decision. Nothing in this subsection (k) shall affect children in state custody or their enrollment in any LEA. Any LEA that accepts enrollment of a student from another LEA may dismiss the student if it is determined subsequent to enrollment that the student had been expelled or remanded by the other LEA.

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HB 174

(I) Nothing in this section shall interfere with requirements or consultations between the juvenile, the court, and an LEA pursuant to title 37 if the court finds a juvenile to be delinquent as a result of an act pursuant toยง 37-1-131.

SECTION 2. Tennessee Code Annotated, Section 49-6-3401 (a)(14), is amended by deleting the subdivision and substituting instead the following: Off campus criminal behavior that results in the student being legally charged with an offense that would be classified as a felony if the student was charged as an adult or if adjudicated delinquent for an offense that would be classified as a felony if the student was an adult, or if the student was convicted of a felony, and the student's continued presence in school poses a danger to persons or property or disrupts the educational process. Notwithstanding ยง 37-1-131 or any other law to the contrary, the principal of the school in which the student is enrolled and the director of schools shall determine the appropriate educational assignment for the student released for readmission.

SECTION 3. This act shall take effect July 1, 2015, the public welfare requiring it, and shall apply to any violent felonies or violent felony delinquency acts occurring on or after that date.

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~tatc of \[cnncsscc PUBLIC CHAPTER NO. 507 HOUSE BILL NO. 473

By Representatives Harry Brooks, McCormick Substituted for: Senate Bill No. 293

By Senator Gresham AN ACT to amend Tennessee Code Annotated, Title 49, relative to K-12 education.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 49-13-106(a), is amended by adding the following language as a new subdivision (3): (3)

(A) Charter schools authorized by the achievement school district shall conduct an initial student application period of at least thirty (30) days. During this period, all students zoned to attend or currently enrolled in a school that is eligible to be placed in the achievement school district may enroll. If, at the end of the initial student enrollment period, the number of eligible students seeking to be enrolled does not exceed the school's capacity or the capacity of a program, class, grade level, or building, then the charter school may enroll the child or children of a teacher, staff member, sponsor, or member of the governing body as well as students identified in subdivisions (b)(1)(C)(ii), (iii), and (iv) and in accordance with enrollment provisions contained in the charter agreement; provided, however, that no school's total enrollment of such students shall exceed twenty-five percent (25%) of the total school enrollment.

(B) Upon acquiring sufficient data to achieve a student achievement growth score as represented by the Tennessee Value-Added Assessment System (TVAAS), a charter school authorized by the ASD may not enroll additional students identified in subdivisions (b)(1)(C)(ii), (iii), and (iv) as permitted in subdivision (a)(3)(A) unless the school demonstrates student achievement growth at a level of "at expectations" or above. This restriction shall not affect students previously enrolled pursuant to subdivision (a)(3)(A).

SECTION 2. Tennessee Code Annotated, Section 49-13-106(a)(2), is amended by designating the existing language as subdivision (A) and adding the following language as subdivision (B): (8) If the achievement school district (ASD) authorizes a charter school under ยง 49-1-614, the ASD shall receive an annual authorizer fee of up to three percent (3%) of the charter school's per student state and local funding as allocated under ยง 49-13112(a). By May 1 of each year, the commissioner shall set the percentage of a charter school's per student state and local funding that the ASD shall receive as the annual authorizer fee for the next school year.

SECTION 3. This act shall take effect July 1, 2015, the public welfare requiring it.

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Notes _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ 71

When Rights Arenâ&#x20AC;&#x2122;t Civil: A Discussion of Board/Board Member Exposure in Civil Rights Lawsuits

Chris W. McCarty, Attorney Lewis, Thomason, King, Krieg & Waldrop P.C.

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When Rights Aren’t Civil: Exposure in Civil Rights Lawsuits

Chris W. McCarty Emily H. Mack Lewis Thomason

The Question When lawsuits are threatened or discussed, we consistently hear one question from board members, administrators and teachers alike: – “Am I going to lose my house?”

In almost any situation, the answer is, “No.” But how do we reach that conclusion?

Common Theories School systems often get sued under a number of theories, including, but not limited to: – – – –

Discrimination; Harassment; Negligence; Bullying.

In 99.9% of lawsuits involving the above-claims, individual school system employees or board members will have no personal exposure.

Instead, the plaintiffs and their attorneys hope for recovery from the school system itself and/or the system’s insurance carrier.

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Civil Rights Claims But what happens when a student, a parent or a citizen claims that the school system deprived him/her of constitutional rights?

– He/she can sue under 42 U.S.C. § 1983.

– Also known as a “1983 claim.”

Common Constitutional Rights Free Speech

Freedom of Religion

Freedom of the Press

Peaceful Assembly

Keep/Bear Arms

Reasonable Search/Seizure

Due Process

Self-Incrimination

Private Property

Trial by Jury

Cruel/Unusual Punishment

Etc.

1983 Claims What does 42 U.S.C. § 1983 say?

– “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law…”

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1983 Principle But what is the actual point of the statute?

– Deterring public officials or state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.

1983 Defendants Under a 1983 claim, a plaintiff can: – Sue the school system; AND/OR

– Sue school officials or board members.

Official v. Individual Capacity When a school official or a board member is sued, we see this in the caption: – John Doe, in his individual capacity; – John Doe, in his official capacity; OR – John Doe, in his official and individual capacities

Official = Suing the school system Individual = Suing the official/member

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Capacity Example We recently received a school-related suit involving constitutional rights with the following caption: Individual

Official

1983 Liability Under a 1983 theory, a school system will only be subject to liability when a “policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers,” is the direct cause of the deprivation of a citizen’s right. ~ Adkins v. Board of Educ., 982 F.2d 952, 957 (6th Cir. 1993).

1983 Liability The critical question in determining 1983 liability is: – Did the person committing the alleged act do so pursuant to official policy or custom?

A school system could also be liable for the actions of an official with “final policymaking authority.” ~ City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988).

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Individual Immunity School officials and board members usually possess immunity from liability/suit.

• Legislative Immunity commonly applies to actions taken in the sphere of legitimate legislative activity (e.g., budgeting, debating, introducing, and voting on policies or other actions).

• Qualified Immunity commonly applies when the action of a school official or board member did not violate a clearly established right of which a reasonable person would have been aware.

Qualified Immunity The United States Supreme Court applied qualified immunity to school board members in Wood v.

Strickland, 420 U.S. 308, 309 (U.S. 1975): – Denying any immunity and allowing monetary costs for mistakes which were reasonable in the light of all the circumstances would “undoubtedly deter even the most conscientious school decisionmaker from exercising his judgment independently, forcefully, and in a manner best serving the long-term interest of the school and the students.”

Translation If you are using good sense, and acting in good faith, it is extremely hard to be hit with personal liability for actions performed as a school official or board member.

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Immunity Application Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir. Tex. 1994), offers an approach to qualified immunity and personal liability in a case involving a principal was sued after a teacher molested a student.

According to the 5th Circuit Court of Appeals, a principal/supervisor could be “held personally liable for a teacher’s violation of a student's constitutional right to bodily integrity” if it is established that: 1. the principal learned of facts or a pattern of inappropriate sexual behavior by a subordinate pointing plainly toward the conclusion that the subordinate was sexually abusing the student; AND 2. the principal demonstrated deliberate indifference toward the constitutional rights of the student by failing to take action that was obviously necessary to prevent or stop the abuse; AND 3. such failure caused a constitutional injury to the student.

Immunity Application Schreffler v. Mitchell, 2005 U.S. Dist. LEXIS 900 (D. Del. 2005), offers an approach to qualified immunity and personal liability in a case involving the rights of a system employee.

The Plaintiff, Carol Schreffler, an Assistant Superintendent, assisted state investigators and conducted a personal review of the Superintendent’s travel reimbursement requests and related expenses.

The investigation led to criminal charges and the Superintendent’s retirement. The Plaintiff served as Acting Superintendent during the candidate search, but someone else was eventually chosen as the permanent Superintendent.

The Plaintiff claimed she was passed over due to board members holding a grudge over the investigation. The parties and the court agreed that, if board members “made the decision not to promote [the Plaintiff] because of her protected activity on matters of public concern, [those board members] would not be entitled to qualified immunity.”

Translation When making decisions as a school official or a board member, just remember to stay away from the three R’s: – Retribution; – Retaliation; – Revenge.

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QUESTIONS???

Memphis Office

Nashville Office

Knoxville Office

(901) 525-8721 40 S. Main St. #2900 Memphis, TN 38103

(615) 259-1366 424 Church St. Suite 2500 PO Box 198615 Nashville, TN 37219

(865) 546-4646 620 Market St. 5th Floor PO Box 2425 Knoxville, TN 37901

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WHEN RIGHTS AREN’T CIVIL: Board/Board Member Exposure in Civil Rights Lawsuits Chris W. McCarty & Emily H. Mack What is § 1983?1 § 1983 is a method for recovering damages in tort for a deprivation of Constitutional rights.2 The statute was passed in 1871 as part of a larger piece of legislation focused on quelling the violence of the Ku Klux Klan which, at the time, was running rampant through the Southern States.3 The purpose of the statute is to provide a federal remedy in situations where state law allows for an abridgement of a citizen’s federal rights.4 § 1983 does not create any right on its own; it merely provides a vehicle for recovery when one is deprived of certain preexisting rights.5 § 1983 provides, in relevant part, as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . .6 What Rights are Covered Under § 1983?

1

42 U.S.C. § 1983.

See Monroe v. Pape, 365 U.S. 167, 170 (1961).

3 See id. at 173.

4 See id.

5 See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979).

6 42 U.S.C. § 1983.

2

1

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By its terms, Section 1983 can be used to remedy the deprivation of “rights” secured by the Constitution, federal statutes, and regulations implementing those statutes. Constitutional provisions that are enforceable by a private party under Section 1983 consist of those which create personal rights and either explicitly apply to the states, or have been held to apply to the states by operation of the Fourteenth Amendment.

Whether a statutorily created “right” exists poses a more difficult question because not every federal law creates a “right” enforceable by a private plaintiff.7 Three principal factors determine whether a statutory provision creates a privately enforceable right: (1) whether the plaintiff is an intended beneficiary of the statute; (2) whether the plaintiff’s asserted interests are not so vague and amorphous as to be beyond the competence of the judiciary to enforce; and (3) whether the statute imposes a binding obligation on the State.8 After these inquiries, a fourth arises: (4) did Congress create a comprehensive mechanism for enforcing the statute which implies that it intended to deny a private right of action?9 Once a plaintiff demonstrates that a statute confers an “unambiguously conferred right,” the right is presumptively enforceable by Section 1983.10 Who can be held Liable Under § 1983?

The purpose of §1983 is to deter “state actors” from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.11 As such, to establish liability against a private individual, the court must determine that the person was a state actor — that his or her behavior over which suit is brought

7

Gonzaga Univ. v. Doe, 536 U.S. 273, 276 (2002) (recognizing that “where a statute provides no indication that Congress intends to create new individual rights, there is no basis for a private suit under § 1983.”).

8 Blessing v. Freestone, 520 U.S. 329, 332 (1997).

9 Id. 10 Gonzaga Univ., 536 U.S. at 284.

11 See Wyatt v. Cole, 504 U.S. 158 (1992).

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81

was effectively the action of the state. The principal inquiry in determining whether a private party’s actions constitute “state action” under the Fourteenth Amendment is whether the party’s actions may be “fairly attributable to the state.”12 Initially municipalities were not considered to be persons for § 1983 purposes, and thus were not subject to liability under this statute.13 However, in Monell v. Department of Social Services, the Supreme Court held that municipalities and local government organizations, including local education agencies (“LEAs”), are considered “persons” for § 1983 purposes.14 Under the Monell doctrine, an LEA cannot be held liable under respondeat superior for an injury inflicted solely by its employees or officers.15 Instead, LEAs will only be subject to liability under § 1983 when a “policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers,” is the direct cause of the deprivation of a citizen’s right.16 Since LEAs can act only through natural persons, the critical question in determining whether the LEA will be subject to liability is whether the person committing the act did so pursuant to official policy.17 A formally adopted policy is not required—established usage or custom may be sufficient.18 An LEA may also be subject to liability for actions taken by officials who have “final policymaking authority.”19 Whether an individual has final policymaking authority is determined under state law, and requires that the decision-maker possess final authority to establish

12

See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982).

See Monroe v. Pape, 365 U.S. 167, 188 (1961) (holding that § 1983 was not intended to apply to municipalities or government units).

14 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); see also Memphis Police Dept. v. Garner, 471 U.S. 1 (1985) (noting that “[a]s a division of local government, the Board of Education may be sued directly”).

15 Monell, 436 U.S. at 691.

16 Id. at 690.

17 Adkins v. Board of Educ., 982 F.2d 952, 957 (6th Cir. 1993).

18 Id. at 690-91.

19 See City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988).

13

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municipal policy with respect to the action ordered.20 The fact that a particular official, even a policymaking official, has discretion in the exercise of particular functions does not, without more, make them a “final policymaker” or give rise to municipal liability based on an exercise of that discretion. Rather, the official must also be responsible for establishing final government policy over such activity before the municipality can be held liable.21 School officials and elected board members may be sued for constitutional violations in their official capacity and in their personal, or individual, capacity.22 However, only a suit brought against a school official or board member in his or her individual capacity will subject that individual to personal liability for monetary damages.23 When an official or board member is named as a defendant in his or her official capacity, it is simply another way of stating a cause of action against the board of education itself.24 Thus, as long as the board of education receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the board.

What is Absolute Legislative Immunity and How Does it Pertain to School Officials?

Absolute legislative immunity provides unconditional immunity from liability and suit.

This type of immunity is generally extended to board members and school officials performing legislative functions and attaches to “all actions taken in the sphere of legitimate legislative activity.”25 Activities to which this type of immunity typically applies include actions taken by

20

Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (footnotes and internal citations omitted).

Id. 22 See Kentucky v. Graham, 473 U.S. 159, 165 (1985).

23 Id.; see Banks v. Breathitt Cnty. Bd. of Educ., 925 F. Supp. 2d 856, 860-61 (E.D. Ky. 2013).

24 Id. 25 Meier v. Cnty. of Presque Isle, No. 07-13760-BC, 2008 WL 2117603, at *4 (E.D. Mich. May 20, 2008); see also Tenney, v. Brandhove, 341 U.S. 367, 377 (1951) (holding that “[t]he privilege would be of little value if [legislators] could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazards of a judgment against them based upon a jury’s speculation as to motive”).

21

4

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board members in introducing, debating, and voting on board policies or actions. Budgetmaking is another “quintessential legislative activity” to which this immunity attaches.26 For instance, in Smith v. Jefferson County Board of School Commissioners, the Sixth Circuit held that legislative immunity shielded Section 1983 claims asserted by teachers against individual school board members after their job positions were eliminated for budgetary reasons.27 In finding legislative immunity to be applicable, the court noted that the board members were engaged in legislative activity when they eliminated an alternative school, and job positions of those working there, from the budget. Id. It is important to note, however, that personnel decisions⎯such as terminating an individual employee⎯are normally not considered legislative acts and therefore, are not entitled to legislative immunity.28 What is Qualified Immunity and How Does it Pertain to School Officials?

Qualified immunity is a defense to § 1983 liability whereby a local official is shielded from liability insofar as his or her discretionary actions did not violate a clearly established right of which a reasonable person would have been aware.29 To determine whether a right is “clearly established,” such that qualified immunity is defeated, courts look to decisions of the United States Supreme Court, then to decisions of the Sixth Circuit and courts within the Sixth Circuit, and last to decisions of other circuits.30 If the law creating the alleged right was not clearly established at the time of the official’s action, then the official will be shielded from individual liability, although injunctive relief may still be granted.31 Once the defense of qualified immunity is invoked, the plaintiff bears the

26

Raetree v. Rockett, 852 F.2d 946, 950–951 (7th Cir. 1988).

641 F.3d 197, 217 (6th Cir. 2011).

28 See Raetree 852 F.2d 946, at 951 (noting that employment decisions are generally considered administrative acts, not entitled to immunity).

29 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

30 Ciminillo v. Streicher, 434 F.3d 461, 468 (6th Cir. 2006).

31 Id. 27

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burden of showing that the constitutional right allegedly violated was clearly established at the time of the challenged conduct.

In Wood v. Strickland, the United States Supreme Court specifically extended the protection of qualified good-faith immunity to school board members.32 In doing so, the Court noted that “liability for damages for every action which is found subsequently to have been violative of a student’s constitutional rights and to have caused compensable injury would unfairly impose upon the school decisionmaker the burden of mistakes made in good faith in the course of exercising his discretion within the scope of his official duties.”33 It further recognized that school board members, among other duties, must judge whether there have been violations of school regulations and, if so, the appropriate sanctions for the violations. As such, the Court found that denying any measure of immunity and allowing the imposition of monetary costs for mistakes which were reasonable in the light of all the circumstances would “undoubtedly deter even the most conscientious school decisionmaker from exercising his judgment independently, forcefully, and in a manner best serving the long-term interest of the school and the students.”34 Significantly, the qualified immunity doctrine provides immunity to school officials and board members not only from damages, but also from the litigation itself.35 It is also important to note that qualified immunity is not an available defense in a § 1983 action against a board of education, or against a board member or school offiicial sued in his or her “official capacity.”

32

Wood v. Strickland, 420 U.S. 308, 309 (U.S. 1975), overruled in part, on other grounds by Harlow, 457 U.S. at 800.

33 Id. at 319.

34 Id. 35 Siegert v. Gilley, 500 U.S. 226, 232 (1991) (providing that “[o]ne of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit”); accord Everson v. Leis, 556 F.3d 484, 491 (6th Cir. 2009) (recognizing that “immunity is intended not only to protect officials from civil damages, but just as importantly, to protect them from the rigors of litigation itself, including the potential disruptiveness of discovery”).

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This defense can only be invoked by officials sued in their individual capacities.36 Neither a municipality nor an LEA is entitled to assert the defense of qualified immunity in an officialcapacity case or an action against the school board itself.37 Damages Under § 1983 A plaintiff who alleges the violation of a constitutional right is not entitled to compensatory damages unless he can prove actual injury caused by the violation.38 However, when it is difficult to quantify precisely the damages caused by that injury, presumed damages may be awarded.

In cases with difficult-to-establish injuries, presumed damages roughly

approximate the harm that the plaintiff suffered and thereby compensate for harms that may be impossible to measure.39 In cases where the plaintiff suffers a deprivation of a constitutional right, but lacks proof that he or she experienced an “actual injury” arising from that deprivation, § 1983 allows for nominal damages which serve as “a symbolic recognition of harm that may be awarded without proof of actual harm.”40 Punitive damages are permissible in a § 1983 claim.41 Punitive damages are only appropriate in a § 1983 action “when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.”42 Because punitive damages are a mechanism for punishing the defendant for “willful or malicious conduct,” they may be granted only on a showing of the requisite intent.

Although punitive damages are permitted in a § 1983 claim, punitive damages may not be sought

36

Owen v. City of Independence, 455 U.S. 622, 657 (1980).

Id. 38 King v. Zamiara, Nos. 13-1766/13-177, 2015 U.S. App. LEXIS 9022, *11 (6th Cir. June 1, 2015) (citing Carey v. Piphus, 435 U.S. 247, 264 (1978)).

39 See Id. 40 Pagan v. Village of Glendale, 559 F.3d 477, 478 n.1 (6th Cir. 2009).

41 Smith v. Wade, 461 U.S. 30, 35 (1983).

42 Id. 37

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in a case where a claim is being made against a municipal government or a government unit.43 Thus, in both suits against school boards and against school officials in their official capacity, punitive damages are not an appropriate remedy.

Lastly, it is appropriate for the court to award the prevailing party in a § 1983 suit their attorney costs and fees.44 Common § 1983 Claims made Against School Boards and School Officials Although there is a laundry list of rights protected by § 1983, not all of these rights are commonly the basis for a § 1983 action brought against school officials or an LEA. Rather, there are a handful of rights which form the majority of § 1983 claims against school boards.

Equal Protection Equal Protection is provided for by the Fourteenth Amendment which reads “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”45 In essence, an Equal Protection violation occurs when an individual is discriminated against or treated differently based on their membership in a protected class (i.e. race, color, religion, sex, gender, national origin). The Equal Protection clause is often invoked when a plaintiff brings a discrimination action, including lawsuits arising from peer-to-peer harassment, 46 bullying, 47 or employment discrimination lawsuit.48 Due Process Due Process is a right guaranteed by the Fourteenth Amendment in a clause providing that “nor shall any State deprive any person of life, liberty, or property without due process of

43

See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981).

See Belcher v. Robertson County, 2014 U.S. Dist. LEXIS 165238 at * 35 (M.D. Tenn. Nov. 26, 2104).

45 U.S. CONST. amend. XIV § 1.

46 See Murrell v. School Dist. No. 1, 186 F.3d 1238 (10th Cir. 1999).

47 See Nabozny v. Podlesny, 92 F.3d 446, 454 (7th Cir. 1996) (holding that district was liable as plaintiff’s bullying was based on his membership in a protected class and that administration responded differently because of Plaintiff’s class status).

48 See Hunt v. Cent. Consol. Sch. Dist., 951 F. Supp.2d 1136 (D.N.M. 2013).

44

8

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law.”49 A procedural due process violation occurs when an individual’s life, liberty, or property is taken from them without sufficient investigatory or legal proceedings. Procedural due process claims often arise from disciplinary actions taken against students or teachers.

Substantive due process bars certain government actions regardless of the fairness of the procedures used to implement them. Claims based on substantive due process often implicate the “state-created-danger” theory of constitutional liability under § 1983, which is predicated upon affirmative acts by school officials which either create or increase the risk that an individual will be exposed to private acts of violence.50 Allegations of physical injury or harm to students, including sexual or physcial assault against students, harassment and bullying are also commonly brought under a due process theory.51 In these types of cases, the student often seeks to hold the school administrators individually liable for constitutional injury caused by someone else. In these situations, the Sixth Circuit requires the plaintiff to establish that the administrator was “deliberately indifferent” to the constitutional rights of students.52 This is a very high standard that requires evidence that the administor “participated, encouraged, authorized or acquiesced in the offending conduct.”53 Fourth Amendment This amendment protects an individual’s right to privacy and guards against unreasonable searches and seizures by government officials. Typical claims involve those based on drug

49

U.S. CONST. amend. XIV § 1.

McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 464 (6th Cir. 2006).

51 See e.g. Doe v. Claiborne Cnty., 103 F.3d 495 (6th Cir. 1996) (holding that the Due Process Clause of the Fourteenth Amendment protects the right of a child to be free from sexual abuse inflicted by a public school teacher); but see Lillard v. Shelby County Bd. of Educ. 76 F.3d 716 (6th Cir. 1996)(Teacher’s single slap of student, which did not result in physical injury while potentially battery under state law, did not rise to level of constitutional violation of student’s substantive due process rights, and thus was not actionable under § 1983).

52 Id. at 439.

53 Id. 50

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testing policies, or unreasonable search of student’s person or belongings.54 Detaining a student or interviewing them in certain situations, especially where an SRO or police officer is involved, may also infringe upon the right to be free from unreasaonble seizures.

First Amendment § 1983 claims may also be made against school officials under allegations that a student’s or employee’s free speech was infringed.55 § 1983 claims are also made against schools based on the Free Exercise Clause, which gurantees students the freedom to express their personal religious beliefs.56 Claims based on the Free Exercise Clause frequently involve school prayer in the classroom and during extracurricular activities. Additionally, a § 1983 claim may be made against the school under the Establishment Clause, which prohibits school districts from taking any actions that could be viewed to be an endorsement of religion. Claims based on the Establishment Clause include religious objections to educational curriculum and the teaching and strudy of religion; the celebration of religious holidays in schools; and access to school facilities by students and community groups for religious purposes. First Amendement claims also arise in the context of actions taken in relation to student grooming and attire, curriculum, student publications and organizations, and discipline for off-campus speech.

54

See New Jersey v. T.L.O., 469 U.S. 325 (1985); see also See Bethel Sch. Dist. V. Fraser, 478 U.S. 675 (1986) (treating Free Speech restriction as a colorable § 1983 claim against a school but finding one did not occur).

56 See Rosa-Ruiz v. Gonzalez-Gallofin, 2007 U.S. Dist. LEXIS 69905 (D.P.R. Sept. 20, 2007).

55

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Notes _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ 90

BEP Funding Issues

D. Scott Bennett, Attorney Leitner, Williams, Dooley & Napolitan

91

IN THE CHANCERY COURT FOR DAVIDSON COUNTY. TENNESSEE

HAMILTON COUNTY BOARD OF EDUCATION; BRADLEY COUNTY BOARD OF EDUCATION; McMINN COUNTY BOARD OF EDUCATION; MARION COUNTY BOARD OF EDUCATION; GRUNDY COUNTY BOARD OF EDUCATION: COFFEE COUNTY BOARD OF EDUCATION; and POLK COUNTY BOARD OF EDUCATION,

COPY

Plaintiffs; NO

V

WILLIAM HASLAM, in his official capacity as the GOVERNOR OF TENNESSEE; RON RAMSEY, in his oflicial capacity as the SPEAKER OF THE TENNESSEE SENATE; BETH HARWELL, in her official capacity as the SPEAKER OF THE TENNESSEE HOUSE OF REPRESENTATIVES; CANDICE MCQUEEN, in her official capacity as TENNESSEE COMMISSIONER OF EDUCATION. B. FIELDING ROLSTON, MIKE EDWARDS, ALLISON CHANCEY, LONNIE ROBERTS, CAROLYN PEARRE, WENDY TUCKER, LILLIAN HARTGROVE, CATO JOHNSON, and WILLIAM TROUTT in their official capacities as MEMBERS OF THE TENNESSEE BOARD OF EDUCAT]ON

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Defendants

(ìOMPI ÂINT FôR D FlÌI ÂRA

AND NJUNCTIVE RE LIEF

92

NOW COME the Plaintiffs, by and through counsel, and allege that the State of

Tennessee has breached its duty under the Tennessee Constitution to provide a system of free public education for the children of this State and has instead created a system

that impermissibly shifts the cost of education to local boards of education, schools, teachers and students, resulting in substantially unequal educational opportunities across the State and even within the Plaintiffs' counties. ln support of these allegations,

the Plaintiffs would show this Court as follows:

1.

T.C.A.

Each of the Plaintiffs is a local board of education existing pursuant to

S 49-1 -102(c) for

the purpose of operating a local public school system within Ă­ts

own county. Each local board of education brings this action on behalf of itself, the teachers whom it employs, and the students whom it educates.

2.

The Defendants are officials of the State of Tennessee charged with the

constitutional and statutory obligation of providing students in Tennessee with a free public education. ln particular, William Haslam is the Governor of the State of Tennessee and has both the constitutional and statutory obligation to enforce the laws of this State. Ron Ramsey and Beth HanÂĄrell are the Speakers of the Tennessee

Senate and the Tennessee House of Representatives, respectively, whose legislative chambers have the responsibility to fund Tennessee's system of public education.

Candice McQueen is the Commissioner of Education and has the primary responsibility of formulating policies and regulations for consideration by the State Board of

Education. B. Fielding Rolston, Mike Edwards, Allison Chancey, Lonnie Roberts, Carolyn Pearre, Wendy Tucker, Lillian Hartgrove, Cato Johnson, and William Troutt are members of the Tennessee State Board of Education and have the authority under T.C.A.

S

49-1 -102(a)to promulgate rules and regulations establishing the standards of 2 93

operations for public schools throughout the State. The State Board of Education also has the authority under T.C.A. S 49-3-305(a) to establish rules and regulations

governing the funding of Tennessee's public schools.

3.

This is an action brought pursuant to the Tennessee Declaratory

Judgments Act, T.C.A. S 29-1 4-101 ef seg., in which the PlaĂ­ntiffs ask this Court to find and declare that the State has breached its duty under the education clause of the

Tennessee Constitution, Article Xl, Section 12, inasmuch as Ă­t has failed to provide Tennessee's students with a system of free public education; that the State's system of financing public education violates the equal protection clauses of the Tennessee Constitution, Article l, Section B, and Article Xl, Section 8, inasmuch as the State has not provided a free education to students, compelling schools in comparatively more

affluent communities to shift these costs to students and their parents and schools in less affluent communities to cut services or to do without educational opportunities; that

the State is violating T.C.A. S 49-1 -102(a) inasmuch as the State has failed to implement its own laws calculated to provide for an equitable level of educational funding across the State; and that the State has violated Article ll, Section 24 of the Tennessee Constitution by imposing a series of unfunded mandates upon the communities of this State, all of which have impaired the abilities of the Plaintiffs to fulfill their statutory obligations to the children of their respective counties.

4.

lnasmuch as this is an action against the State of Tennessee, venue is

proper before this Court pursuant to T.C.A. S 4-4-104 and T.C.A. S 20-4-101

.

SCHOOL FUNDING LITIGATION

5.

ln 1993, in the case of Tennessee Small School Svstems v. McWherter et

al., 851 S.W.2d 139 (Tenn. 1993), the Tennessee Supreme Court held that the 3 94

Tennessee Constitution provides students in Tennessee with a fundamental right to a free public education. This fundamental right includes, at a minimum, "the opportunity to acquire general knowledge, develop the powers of reasoning and judgment, and generally prepare intellectually for a mature life." ld. at 150-51. The Supreme Court also found that this constitutional right is an enforceable standard that compels the General Assembly to design and maintain a system of free public education. ld. at 151

6.

Additionally, the Supreme Court held that the General Assembly may not

shift its constitutional responsibility to provide a statewide system of free public education to local communities without violating the equal protection clauses of the

Tennessee Constitution. ld. at 154-55. The Court specifically found that the State's then-existing system of funding education was heavily dependent upon the ability and desire of local governments to augment the State's own funding effort such that there

were wide disparities across the State among the educational opportunities available to different children. ld. at 155-56.

7.

ln 1992, while Tennessee Small School Svstems v. McWherter et al. was

pending, the GeneralAssembly enacted the Basic Education Program (the BEP). The BEP was the State's first comprehensive effort to measure the true cost of operating a system of public education in Tennessee and to spread those costs equitably across the

State based upon a local government's ability to share these costs. The BEP attempted to determine these costs by identifying 42 separate cost components. The BEP also created a Review Committee whose task it was to determine the actual cost of these 42 different components in each of the local boards of education and to make recommendations to the State Board of Education, the Commissioner of Education, the

Senate, and the House of Representatives regarding funding.

4 95

8.

ln 1995, the Tennessee Supreme Court once again heard Tennessee

Small School Svstems v. McWherter et al., 894 S.W.2d 734 (Tenn. 1995), this time focusing on whether the BEP fulfilled the General Assembly's constitutional duty to provide a system of free public education and to fund this system in a way that provided

substantially equal opportunities. The Supreme Court noted favorably that, if fully implemented, the BEP would fund

75o/o

of the school systems' classroom costs and

50% of its non-classroom support costs. ld. at737.

9.

While recognizing the merits of the BEP, the Supreme Court nevertheless

noted one constitutionally significant defect. Although the BEP had taken into account dozens of different cost components that local boards of education confront in operating

their school systems, the BEP did not take into account what the Supreme Court held to be "the most important component of any education plan or system," the cost of

teachers' compensation and benefits. ld. at 738. The Supreme Court therefore ruled that "the failure to provide for the equalization of teachers' salaries according to the BEP formula puts the entire plan at risk realistically and, therefore, legally." ld.

10.

Subsequently, in 2002, the Tennessee Supreme Court heard Tennessee

Small School Svstems v. McWherter et al., 91 S.W.3d 232 (Tenn. 2002), a third time.

The Supreme Court once again found that the State had failed to provide adequately for the cost of teachers' salaries and to equalize them across the State. ld. at 240-41.

Curiously, the State had not amended the BEP to include the cost of employing

teachers but instead had enacted T.C.A. S 49-3-366, which was a one-time attempt to equalize teachers'salaries. This salary equity plan, however, did not investigate the

actual costs that school systems were incurring in employing teachers, and it did not attempt to equalize these costs across the State. Indeed, the Supreme Court found that 5 96

the GeneralAssembly had actually ignored the recommendations of its own BEP Review Committee. The Supreme Court therefore noted prophetically that "whatever the average salary may have been in 1998-1999, it is clear that the target salary in [the State'sl equity plan bears no relationship to the current, actual cost of providing teachers as this opinion is written in 2002, leaving a gap that will widen with each passrng year." ld. at24O

THE BEP 2.0

11.

ln 2007, the General Assembly amended its Basic Education Program to

include the cost of teachers within the funding formula. The General Assembly further provided that the cost of these positions would be adjusted from time to time to track the recommendations of the Review Committee.

12.

These changes, however, were to be phased in with funds that might be

made available through the general appropriations act. Apart from a one-time adjustment that did not close the funding Eap, fhese funds have never been appropriated, as a consequence of which the funding gap of approximately $3,800 per teacher per year that existed in 2002 is now approximately $10,000 per teacher per

year.

f

n total, fhe Sfafe's funding formula underestimates the cost of teachers'sa/ares

by approximately $532 million.

13.

Additionally, despite the stated intention of covering the costs of teachers

in the BEP, the State has never made provision for the actual cost of teachers' health

insurance. Although local boards of education employ teachers for an entire year, the State only allows for ten months' of insurance coverage. As a consequence, fhe Sfafe's fundĂ­ng formula underestimates the cosf of teachers' insurance by approximately $64 million.

6 97

14.

Furthermore, while the BEP formula presumes that the State will pay 75%

of classroom costs, it presently pays only

70o/o

of these costs, resulting in an annual

shortfall of approximately $134 million even before taking into consideration that the State already uses artificially low figures associated with the cost of operating the school system.

15.

Meanwhile, pursuant to its statutory duty under T.C.A. S 49-1-302(4XB)

and T.C.A. S 49-3-351(a), the BEP Review Committee has consistently made a number

of recommendations to the State Board of Education, the Commissioner of Education, and both Houses of the Tennessee General Assembly designed to fund the true cost of operating Tennessee's system of public education. The State, however, has simply ignored the recommendations of the BEP Review Committee.

16.

Most recently, on November 1,2014, the BEP Review Committee issued

a report finding the BEP formula failed to estimate accurately a local board of education's cost of insuring its teachers; failed to utilize the actual salary costs a local board of education incurs in employing its teachers; failed to provide the requisileTS%

of classroom expenses set forth under Tennessee law; used too high a class size ratio in generating the number of BEP-funded instructional positions; failed to provide

necessary costs associated with professional development and mentoring of teachers; failed to fund school nurses and technology coordinators; failed to provide adequate funding for teaching materials and supplies; failed to account for the increased use of technology within school systems; failed to account for the cost of inflation as related to

a local board of education's technology costs; and failed to fund necessary positions associated with the increased use of technology. ln total, the BEP Review Committee

7 98

concluded that the GeneralAssembly is underfunding education in Tennessee by hundreds of millions of dollars.

EDUCATION REFORM EFFORTS

17.

As part of its constitutional duty to establish an excellent system of public

education for Tennessee's children so that, upon graduation from the State's public schools, they might function effectively in the modern economy, the State has been

pursuing education reform. As part of these reform efforts, the State has adopted rigorous academic standards for its students and has created a system of accountability

measures designed to assess the extent to which local boards of education are achieving these academic standards.

18.

ln pursuit of these standards, the State has essentially rewritten much of

the curriculum that Tennessee's teachers have used for many years. Along with this new curriculum, teachers are challenged to use different pedagogy to spur their

students' critical thinking skills. This higher order thinking, as distinct from rote knowledge, is essential for Tennessee students to function in the 21"1century economy.

19.

Similarly, the State has established a series of tests, intended as

accountability measures, to track the students' progress and to hold local boards of education accountable for student achievement. Students are expected to take these tests online to provide for quick feedback to the teachers and the local boards of educatĂ­on.

20.

As an essential component of this education reform, the State has also

required local boards of education and their teachers to implement a program known as Response to Intervention (RTl). This program, which is excellent pedagogy, requires

local boards of education and their teachers to spend extra time with students who are

I 99

slow to grasp core concepts. Once a teacher identifies a child as having difficulty with

the class, the school system is to put the child through a series of assessments and to provide him or her with up to 120 minutes of additional, more intensive instruction per week.

THE FINANCIAL DILEMMA

21.

While these higher academic standards and their accompanying

accountability measures are sound educational policy, they exacerbate the financial needs of an already strained system of public education. For example, although the

State's new curriculum now places a premium upon creative means of conveying instruction to students, the GeneralAssembly has not increased the allowance to classroom teachers for the purchase of classroom materials. Similarly, even though the

State now requires local boards of education to assess their students through various online tests, the State has made no allowance for the purchase of sufficient digital

devices so students can take these tests. With regard to RTl, which requires local boards of education to assess struggling students and to provide additional instruction to them, the State has made no allowance for the purchase of the assessment materials or the personnel costs associated with the additional hours of instruction the local boards of education now owe to eligible students.

22.

These new demands on local boards of education are in addition to the

financial difficulties they already face. Thus, the funding gap is magnified, forcing local boards of education, regardless of where they are located, to take drastic steps to meet the financial pressures created by the General Assembly's failure to fund the true cost

of public education.

I 100

23.

ln comparatively more affluent communities, parents are often expected to

pay hundreds of dollars in fees as part of enrolling their children in nominally free public

schools. (As a tacit admission that some schools have become dependent upon fees, the State Board of Education has even promulgated rules governing the fees that local boards of education may charge for attending what should be the free public schools.)

Later in the year, parents may be expected to participate in fundraising activities or to solicit donations from local foundations. (Again, as a tacit admission that some schools have become dependent upon fundraising, the General Assembly has enacted statutes

governing school support organizations.) These outside funds defray the cost of operating the schools so that school administrators may be able to hire teachers to

teach classes, hire assistants who provide intervention, purchase electronic devices for use in student assessment, and othenryise meet the financial needs not covered by the State.

24.

ln less affluent communities, sometimes within the same county, there are

insufiicient resources available to operate a school. ln the absence of adequate funds

to provide a free public education to their students, and lacking the financial capacity within the community to request the payment of school fees or to solicit fundraising or charitable donations, teachers themselves oftentimes contribute hundreds of dollars of their own money and volunteer their own time to meet the needs of their students. ln other situations, school administrators have had to take drastic steps such as cutting basic services to the detriment of educational opportunities available to children.

COUNT ONE: THE EDUCATION CLAUSE

25.

Article Xl, Section 12 of the Tennessee Constitution provides in material

part that "the General Assembly shall provide for the maintenance, support and 10 101

eligibility standards of a system of free public schools." This provision of the Tennessee Constitution creates for Tennesseans a fundamental right to a free public education that is calculated, at a minimum, to provide students with the opportunity to acquire general

knowledge, to develop the powers of reasoning and judgment, and generally to prepare

students intellectually for a mature life.

26.

While the General Assembly has adopted educational standards that

satĂ­sfy the substantive aspect of the education clause, it has failed to provide a system of free public education. To the contrary, the present system has impermissibly shifted

the burden of financing public education to the students and parents themselves or, alternatively, to the teachers who work within the system. There is no compelling interest that justifies the State's failure to provide Tennesseans with their fundamental right to a free public education.

27.

The General Assembly has been aware of its obligation to fund a system

of free public education across the State for more than 20 years and yet has been

deliberately indifterent to its constitutional duty. ln view of the General Assembly's persistent failure to provide Tennesseans with this fundamental right, this Court must order the State to fund the true cost of public education with all deliberate speed.

GOUNT TWO: EQUAL PROTECTION OF THE LAW

28.

Article l, Section B and Article Xl, Section

I

of the Tennessee Constitution,

read together, guarantee equal privileges for all similarly situated Tennesseans. As applied to the right to receive a free public education, these constitutional provisions require that students across Tennessee receive substantially equal educational opportunities.

11 102

29.

Since 1988, when the State's funding of education was first challenged,

the State has failed to take meaningful steps toward providing substantially equal educational opportunities for its students. Although it created the BEP Review Committee for the purpose of identifying the true cost of operating a system of public

education, and although the Review Committee has consistently made recommendations to the State regarding adjustments to the State's funding formula and

other steps the State should take to fund education in Tennessee, the State has consistently ignored these recommendations. As a result, the State's funding formula fails to account for the true cost of educating students in Tennessee.

30.

Although the State's failure to fund education was readily apparent prior to

the recent educational reform efforts, these reform measures have only exacerbated the

problem. The State has imposed new requirements and standards on local boards of education but has not allocated any funds to defray these costs.

31.

Accordingly, schools in those communities with the resources and desire

to absorb these costs have done so whereas schools in other communities, sometimes within the same county, have had to do without basic services. Neither alternative is

appropriate in a State that recognizes a free public education as a fundamental right.

32.

ln view of the data that the BEP Review Committee has collected since

1992 to identify the true cost of educating Tennessee's students, and in view of the well-

considered recommendations that the BEP Review Committee has presented to the State regarding the funding of public education in Tennessee, there is no rational basis for the General Assembly to have refused to fund these recommendations.

33.

Consequently, given the State's persistent refusalto establish a system of

public education with substantially equal educational opportunities across the State, this 12 103

Court must order the State to implement the present recommendations of the BEP Review Committee with all deliberate speed and to act upon additional recommendations from the BEP Review Committee regarding the cost of the State's

education reforms upon local boards of education.

COUNT THREE: VIOLATION OF T.C.A $ 49-1-102(al

34.

T.C.A. S 49-1 -102(a) provides in material part that "the system of public

education in the State shall be governed in accordance with laws enacted by the General Assembly and under policies, standards, and guidelines adopted by the State Board of Education that are necessary for the proper operation of public education in Kindergarten through Grade 12 (K-12)."

35.

The State, however, has ignored its own laws governing the operation of

Tennessee's public schools. For example, T.C.A. S 49-3-307(a) provides that the State is to include in its BEP appropriations a number of cost components in its funding

formula. Additionally, this subsection requires that the State fund

75o/o

of classroom

costs. To date, however, the General Assembly has failed to include a number of these components and is funding only 7}o/oof the classroom costs, resulting in a funding

shortfall of approximately $134 million.

36.

Furthermore, T.C.A.

S

49-3-307(b) provides that the State was to begin

phasing in compliance with these components following the adoption of Chapter 369 of

the Public Acts of 2007. To date, it has taken no steps to phase in these components, resulting in additionalfunding shortfalls of approximately $600 million.

37.

The State's failure to follow its own laws is irrational and arbitrary, and this

failure is an abdication of the General Assembly's constitutional duty to provide for a

13 104

system of free public education. Accordingly, this Court should direct the State to follow

the law and fund the schools according to its own policies and statutes.

COUNT FOUR: UNFUNDED MANDATES

38.

Article ll, Section 24 of the Tennessee Constitution provides in material

part that "no law of general application shall impose increased expenditure requĂ­rements on cities or counties unless the General Assembly shall provide that the

State share in the cost."

39.

Since the amendments to the BEP in 2007, not only has the State failed to

Ă­mplement its own funding statute but also the State has adopted increasingly rigorous

academic standards for Tennessee's students and accountability measures for local boards of education. While these standards are entirely appropriate for any Tennessee student who hopes to compete in the 21't century economy, the General Assembly has

failed to provide any funds to offset the costs a local board of education must incur in order to comply with the State's standards.

40.

The State's failure to make sufficient provision for the cost of its education

reforms is fundamentally unfair to local communities and the students of Tennessee, and this Court should direct the State to shoulder the burden of funding these reforms.

PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, the Plaintiffs pray for relief as follows:

1.

That this Court find and declare that the General Assembly's present

system of funding education violates Article Xl, Section 12 of the Tennessee Constitution inasmuch as it does not provide Tennesseans with a free public education

14 105

2.

That this Court find and declare that the General Assembly's failure to

identify and fund the true cost of educating students in Tennessee fails to provide

Tennesseans with substantially equal educational opportunities.

3.

That this Court, recognizing that the General Assembly is violating the

fundamental right of Tennesseans to enjoy a free public education, and that the present system of financing fails to guarantee substantially equal educational opportunities across the State, direct the General Assembly to appropriate sufficient funds to implement the recommendations of the BEP Review Committee dated November 1, 2014, with all deliberate speed;

4.

That this Court, in view of the General Assembly's having established

rigorous education standards as part of its duty under Article Xl, Section 12 of the

Tennessee Constitution, but recognizing that the General Assembly has failed to account for the costs associated with pursuing these high education standards, direct

the General Assembly to include the cost components associated with pursuing these measures in the BEP formula;

5.

6.

That costs in this matter be taxed against the Defendants; and For such further general and equitable relief as this Court may deem just

and proper.

15 106

Respectfully submitted, LEITNER, WILLIAMS, DOOLEY & NAPOLITAN, PLLC BY:

D. SCOTT BENNETT - TNBPR: 015988 MARY C. DECAMP - TNBPR:027182 Attorneys for Plaintiffs Tallan Building, Suite 500 200 West M.L. King Blvd.

Chattanooga, TN. 37402 Telepho ne : (423) 265-021 4 Telecopie r: (423) 266-5490

16 107

IN THE CHANCERY COURT FOR DAVIDSON COUNTY, TENNESSEE

HAMILTON COUNTY BOARD OF EDUCATION; BRADLEY COUNTY BOARD OF EDUCATION; McMINN COUNTY BOARD OF EDUCATION; MARION COUNTY BOARD OF EDUCATION; GRUNDY COUNTY BOARD OF EDUCATION: COFFEE COUNTY BOARD OF EDUCATION; and POLK COUNTY BOARD OF EDUCATION,

COPY

Plaintiffs; NO

V

WILLIAM HASLAM, in his official capacity as the GOVERNOR OF TENNESSEE; RON RAMSEY, in his official capacity as the SPEAKER OF THE TENNESSEE SENATE; BETH HARWELL, in her official capacity as the SPEAKER OF THE TENNESSEE HOUSE OF REPRESENTATIVES; CANDICE MCQUEEN, in her official capacity as TENNESSEE COMMISSIONER OF EDUCATION; B. FIELDING ROLSTON, MIKE EDWARDS, ALLISON CHANCEY, LONNIE ROBERTS, CAROLYN PEARRE, WENDY TUCKER, LILLIAN HARTGROVE, CATO JOHNSON, and WILLIAM TROUTT in their official capacities as MEMBERS OF THE TENNESSEE BOARD OF EDUCATION

,K-3

-:

.::.If

. {¡ '-

+

lr¡

--'-.':''

Ç

a,

1l

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i,

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Defendants.

PLAINTIFFS' FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANTS

108

To: William Haslam, Governor of Tennessee; Ron Ramsey, Speaker of the Tennessee Senate; Beth Harwell, Speaker of the Tennessee House of Representatives; Candice McQueen, Tennessee Commissioner of Education; B. Fielding Rolston, Chairman, Tennessee Board of Education; Mike Edwards, Member, Tennessee Board of Education; Allison Chancey, Member, Tennessee Board of Education; Lonnie Roberts, Member, Tennessee Board of Education; Carolyn Pearre, Vice Chair, Tennessee Board of Education; Lillian Hartgrove, Member, Tennessee Board of Education; Wendy Tucker, Member, Tennessee Board of Education; Cato Johnson, Member, Tennessee Board of Education; William Troutt, Member, Tennessee Board of Education; c/o Herbert H. Slatery Tennessee Attorney General 425 Fifth Avenue North Nashville, TN 37243

NOW COME the Plaintiffs, by and through counsel, and pursuant to Rules 33 and 34 of the Tennessee Rules of Civil Procedure propound the following Interrogatories and Requests for ProductĂ­on of Documents to Defendants to be answered fully and separately within 45 days from the date of service.

INTERROGATORIES

1.

lf your response to any of the Requests for Admissions served

contemporaneously herewith was anythĂ­ng other than an unqualified admission, please set forth in detail each and every reason supporting every such response to the

Plaintiffs' Requests for Admission.

ANSWER:

2 109

Signature

Sworn to and subscribed before me

this

day of

2015

NOTARY PUBLIC My commission expires:

3 110

REQUESTS FOR PRODUCTION OF DOCUMENTS 1

No.

Please provide all documents supporting your response to Interrogatory

1

RESPONSE:

2.

Please provide all documentation supporting the BEP Review Committee

findings, conclusions, and recommendations made in its November 1,2014 report.

RESPONSE:

4 111

Respectfully submitted, LEITNER, WILLIAMS, DOOLEY & NAPOLITAN, PLLC BY D. SCOTT BENNETT - TNBPR: 015988 MARY C. DECAMP - TNBPR:027182 Attorneys for Plaintiffs Tallan Building, Suite 500 200 West M.L. King Blvd.

Chattanooga, TN. 37402 Telephone : @23\ 265-021 4 Telecopie r: (423) 266-5490

5 112

CERTIFICATE OF SERVICE l, the undersigned, do hereby certify that a true and exac!3opy of tþe foregoing has been hand delivered to all counsel of record on this th

&ãuvof

2015.

.4&,

Herbert H. Slatery Tennessee Attorney General 425 Fifth Avenue North Nashville, TN 37243

By:

D. SCOTT BENNETT - TNBPR: 015988 MARY C. DECAMP - TNBPR:027182

6 113

IN THE CHANCERY COURT FOR DAVIDSON COUNTY, TENNESSEE

HAMILTON COUNTY BOARD OF EDUCATION; BRADLEY COUNTY BOARD OF EDUCATION; McMINN COUNTY BOARD OF EDUCATION; MARยกON COUNTY BOARD OF EDUCATION; GRUNDY COUNTY BOARD OF EDUCATION: COFFEE COUNTY BOARD OF EDUCATION; and POLK COUNTY BOARD OF EDUCATION, Plaintiffs; NO

V

WILLIAM HASLAM, in his official capacity as the GOVERNOR OF TENNESSEE; RON RAMSEY, in his official capacity as the SPEAKER OF THE TENNESSEE SENATE; BETH HARWELL, in her official capacity as the SPEAKER OF THE TENNESSEE HOUSE OF REPRESENTATIVES; CANDICE MCQUEEN, in her official capacity as TENNESSEE COMMISSIONER OF EDUCATION. B. FIELDING ROLSTON, MIKE EDWARDS, ALLISON CHANCEY, LONNIE ROBERTS, CAROLYN PEARRE, WENDY TUCKER, LILLIAN HARTGROVE, CATO JOHNSON, and WILLIAM TROUTT in their official capacities as MEMBERS OF THE TENNESSEE BOARD OF EDUCATION Defendants

PLAINTIFFS' FIRST REQUESTS FOR ADMISSION TO DEFENDANTS

114

NOW COME the Plaintiffs, by and through counsel, and pursuant to Tennessee Rule of Civil Procedure 36.01, propound the following Requests for Admission to Defendants to be answered fully and separately under oath within 45 days from the date

of service.

1.

Please admit that the Tennessee General Assembly has a constitutionally

mandated duty to provide for a system of free public education for the citizens of Tennessee.

RESPONSE:

2.

Please admit that, pursuant to its duty under Tennessee law, the Basic

Education Program Review Committee annually reviews the budgets of local boards of education across the State in order to identify the actual cost of operating Tennessee's system of public education.

RESPONSE:

3.

Please admit that, in preparing this cost analysis, the Basic Education

Program Review Committee follows a State-approved protocol entitled the "Tennessee Basic Education Program 2.0 Handbook for Computation," a copy of which may be

found online at http://tn.qov/sbe/BEPiBEPHandbook revised April 201 4.pdf RESPONSE:

4.

Please admit that, based upon its annual cost analysis, the Basic

Education Program Review Committee makes recommendations to the State Board of 2 115

Education and to both Houses of the Tennessee General Assembly regarding the actual

cost of operating Tennessee's system of public education.

RESPONSE:

5.

Please admit that, pursuant to its duty under Tennessee law, the Basic

Education Program Review Committee issued an Annual Report dated November

1,

2014, a copy of which may be found online at

http://tn.qovisbe/BEPi2014%2OBEP/FINAL BEP November

1 2014

Report.pdf.

RESPONSE:

6.

Please admit that the Basic Education Program Review Committee

Annual Report issued on November 1, 2014 states that the State of Tennessee has accounted for the cost of only ten months of health insurance for teachers.

RESPONSE:

7.

Please admit that the Basic Education Program Review Committee

Annual Report issued on November 1, 2014 states that the State of Tennessee has underfunded teachers' salaries by approximately $10,000.00 per teacher per year.

RESPONSE:

8.

Please admit that, per T.C.A. S 49-3-356, the State of Tennessee is to

fund 75% of school systems' classroom costs.

RESPONSE

3 116

9.

Please admit that, per the Basic Education Program 2.0 Blue Book, a copy

of which may be found online at http:/itn.gov/sbe/BEP/2014o/o20BEP/BEP_Blue_Book_FY15.pdf,

the State of

Tennessee only pays 70% of school systems' classroom costs.

RESPONSE:

Respectfully submitted, LEITNER, WยกLLIAMS, DOOLEY & NAPOLITAN, PLLC

e

BY

D. SCOTT BENNETT - TNBPR: 015988 MARY C. DECAMP - TNBPR: 027182 Attorneys for Plaintiffs Tallan Building, Suite 500 200 West M.L. King Blvd.

Chattanooga, TN. 37402 Telephone : @23) 265-021 4 Telecopier: (423) 266-5490

4 117

CERTIFICATE OF SERVICE l, the undersigned, do hereby certify that a true and exactçopy of thç foregoing has been hand delivêred to all counsel of record on this ,"

tn&ãa;;, /Oon

2015.

Herbert H. Slatery Tennessee Attorney General 425 Fifth Avenue North Nashville, TN 37243

By: D. SCOTT BENNETT - TNBPR: 015988 MARY C. DECAMP - TNBPR:027182

5 118

INTHE CHANCERY COURT FORDAVIDSON COUNTYN TENNESSEE H,A.MILTON COUNTY BOÄR} OF EDUCATION, et al.,

Plaintiffs v

WILLIAM HASLÁ.M, in his official capacity as the GOVERIIOR OF TENNÍSSEE, et al.,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 15-355-I

DEFENDANTS'MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS The Defendants, State officials from both the Executive branch and the Legislative branch

of the government of

Tennessee, sued

in their official capacities only, have moved that

the

Complaint in this action be dismissed in its entirety, pursuant to Rule 12.02 of theTennessee Rules

of Civil Procedure, on the grounds of lack of subject matter jurisdiction and failwe to state upon which relief can be granted (Tenn.R.Civ.P. 12.A2(1) and

a

claim

(6)). As discussed below,

the

Complaint is based upon a profoundly flawed interpretation of the three (3) Small Schools cases, Tennessee Small School Systems, et al. v. McWlterter, et

a|.,851 S.W.2dI39 (Tenn. 1993)("Small

Schools 1"); Tennessee Small School Systems, et al. v. McWherter, et a1.,894 S.W.2d 734 (Tenn.

lggs)("Smail Schools II"); and Tennessee Small School Systems, et al. v. McWherter, et a|.,91 S.V/.3d 232 (Tenn. 2A02) ("Small Schools III), upon which the Complaint purports to rely in seeking the relief requested. The Complaint is further based upon a misreading of Tennessee education financing law, claiming that the State violates certain allegedly mandatory funding

levels when, in fact, Tennessee education funding statutes grant the Legislature considerable

119

leeway in funding state K- 1 2 education from year to year. The Plaintiffs also misapprehend Article

II, section 24 of the Tennessee Constitution in claiming that

alleged "unfunded mandates" run

afoul of that provision. Finally, this Court lacks jurisdiction over the Legislative Defendants to grant portions of the relief requested, insofar as the injrxrctive relief sought by the Plaintiffs would

violate the Separation of Powers doctrine set forth in Article II, sections

I

and2 of the Tennessee

Constitution.

INTRODUCTION The Complaint Styled a "Complaint for Declaratory and Injunctive Reliet" the Complaint in this action is

brought by seven (7) county boards ofeducation and purports to sue not only on behalfofthe seven boards of education themselves, but also on behalf of "the teachers whom

the students whom

it

educates." (Complaint,

!f

it employs,

and

1). No individual student, parent, or teacher,

however, is a plaintiff in this action. The Plaintiff school boards include boards that would be considered (in terms of numbers of students) "large" school districts such as Hamilton County,

and "small" school districts such as Grundy and Polk Counties. The Complaint invokes the Declaratory Judgments Act, Tenn. Code Ann. $ 29-14-101, et seq., and alleges that the State has breached its duty under Article

XI, section

12 of the Tennessee

Constitution,l to provide Tennessee

students with a system of free public education. (Complaint, fl 3 and "Count One,"

\n25

- 27J.

l Article XI, Section 12 of the Tennessee Constitutionprovides as follows: "The State of Tennesseerecognizesthe inherent value of education and encourages its support. The General Assembly shall provide for the maintenance, support and eligibility standmds of a system of free public schools. The General Assembly may establish and support such postsecondary educational institutions, including public institutions of higher leaming, as it determines."

2 120

It is further alleged that the State's system of financing public education violates the Equal Protection clauses of the Tennessee Constitution (Article I, section 8,2 and Article XI, section 83),

"inasmuch as the State has not provided a free education to students, compelling schools in comparatively more affluent communities to shift these costs to students and their parents and schools in less affluent communities to cut services or do without educational opportunities

.

.."

Qd. and"Count Two" llfl2S . 33). The Complaint also claims that the State is violating Tenn. Code

Ann. $ 49-1-102(a) by failing to provide forooan equitable level of educational funding across the State." (Id. and "Count Three,"

Article II, section

244

II34

- 37). Finally, the PlaintifĂ&#x; allege that the State has violated

of the Tennessee Constitution "by imposing a series of unfunded mandates

upon the communities of this State

.

.." (Id. and "Count Four," fli38 - 40).

The relief sought by the Plaintiff school boards ("Prayer for Relief') includes:

(1) a finding by this Court that the education violates Article

".

. General Assembly's present system of funding

XI, section 12 of the Tennessee Constitution inasmuch

as

it

does not

provide TerÂĄresseans with a free public education" (Complaint atp.14);

Article I, Section I of the Termessee Constitution states: "That no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any maruler destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land."

2

3

Article XI, section 8 of the Termessee Constitution provides: "The Legislature shall have no power to suspend any general law for the benefit ofany particular individual, nor to pass any law for the benefit ofindividuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunities, or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law. No corporation shall be created or its powers increased or diminished by special laws but the General Assembly shall provide by general laws for the organization of all corporations, hereafter created, which laws may, at any time, be altered or repealed and no such alteration or repeal shall interfere with or divest rights which have become vested."

4

The relevant portion of Article II, Section 24 of the Tennessee Constitution states: "No law of general application shall impose increased expenditure requirements on cities or counties unless the General Assembly shall provide that the state share in the cost."

3 121

(2) a finding by this Court that

".

.

the General Assembly's failure to identifu and fund

the true cost of educating students in Tennessee fails to provide Tennesseans with substantially equal educational opportunities," (Complaint at p. 15);

(3) that this Court

".

. direct the General Assembly to appropriate sufficient funds to

implementthe recommendations of the BEF Review CommitteedatedNovember

l,z}I\,with all

deliberate speed" (Complaint at p. 15); and

(4) that this Court,

". .

. recognizing that the General Assembly has failed to account

for

the costs associated with pursuing these high education standards, direct the General Assembly to

include the cost components associated with pursuing these measures in the BEF formula

..

.."

(Complaint at p. 15).

As will be more fully demonstrated below, all four counts of the Complaint are fatally flawed and should be dismissed.

The Small Schools Cases Because the Complaint purports to rely so heavily upon the three Small Schools cases, it is

appropriate to examine these cases at the outset, with a focus upon what they hold and, more importantly, what they do not hold.

In the first of

the Small Schools cases, Tennessee Small School Systems, et

al. v.

McWherter, et ø1.,851 S.W.2d 139 (Tenn. 1993)("Small Schools I'), the Tennessee Supreme Court held that Article XI, section 12 of the Tennessee Constitution guaranteed a free public education and placed upon the General Assembly the duty to "maintain and support a system of free public

schools that provides, at least, the opportunity to acquire general knowledge, develop the powers

of reasoning and judgment, and generally prepare students intellectually for a mature life." Small 4 122

Schools 多

35l S.W.2d at 150-51. Crucially for the instant case, however, the Court did not find

the educational funding system existing at the time unconstitutional on the basis of the education clause (Article

XI, section I 2) of the Tennessee Constitution.

Id. ,

at 152. See City of Humboldt v.

McKnight,2005 WL 2051284 at 11 (Tenn. Ct. App.20A5), perm.app. denied (February 21, 2006)(noting that the Supreme Court held in Smatt Schoolslthat the extent to which the system did not cornport with the education clause need not be determined).

Rather, Small Schools because

l

found that the then existing funding system was unconstitutional

it violated the equal protection clauses (Article I, section 8 and Article XI, section 8) of

the Tennessee Constitution.s As stated inCity of Humboldt,

The Court found that the record demonstrated substantial disparities in the educational opportunities afforded students across the state and that those disparities were caused principally by the statutory funding scheme. 851 S.W.2d at 156. The Court also held that the proof failed to show a legitimate state interest 'Justifring the granting to some citizens educational opportunities that are denied to other citizens similarly situated.",Id. Consequently, the statutory funding scheme failed the rational basis test.

City of Humboldt, Id.,at*12.

It is important, for purposes of the instant case, to understand the extent of disparities in education funding that existed from county to county when Small Schools

l

was decided. For

example, the Court noted in its "Finding of Facts" that, in 1987, 単mds available per pupil varied

from $1,823 to $3,669, depending on the county. Small Schools 多 851 S.W. 2d at 143,145. Thus, some counties' educational funds were more than double those available to other counties. It is

revealing that the Complaint in this case is silent on current figures regarding available funding

5

See foo端rotes 2 and 3 above.

5 123

from county to county. Contemporary county education funding figures are easily available on the Department of Education's website, however.

The "adequacy of funding" issue ln Small Schools 1 is confined to a discussion of the inadequate funding available to the small rura1 counties as a result ofthe disparities stemming from

the funding system existing at that time. The Small Schools

l

Court therefore explicitly declined

to determine a list of "minimum requirements," or to enunciate "the precise level of education mandated by Article XI, section 12, and the extent,

with the education clause

.

if

any, to which the system does not comport

. .." Small Schools 1, S51 S.W.2d, al 152. The Court concluded by

recognizing that the task of fashioning both the contours of the State educational system, and the funding methods supporting that system, belongs to the General Assembly and not the courts: The power of the General Assembly is extensive. The constitution contemplates that the power granted to the General Assembly will be exercised to accomplish the mandated result, a public school system that provides substantially equal educational opportunities to the school children of Tennessee. The means whereby the result if accomplished is, within constitutional limits, a legislative prerogative.

Consequently, the trial court's holding that the appropriate remedy should be fashioned by the General Assembly is af,firmed.

Id., 851 S.W.2d at 156.

Small Schools

II and III bofh concerned elements of the state funding structure created by

the General Assembly to replace the "Tennessee Foundation Program" \ those flaws gave rise to the Small Schools cases. The Court found that the

funding system newly created by the General

Assembly, the "Basic Education Program" ("BEP"), passed constitutional muster, with the exception of one element: the fundingequalization formula did not include the cost of teacher salaries. "The cost of teachers' compensation and benefits is the major item in every education

budget. The failure to provide for the equalization of teachers' salaries according to the BEP

6 124

formula, puts the entire plan at risk functionally and, therefore, legally." Small Schools 11,894 S.W.2d at738.

Small Schools Schools

II,

III

again dealt with teachers' salaries. Following the decision in Small

the General Assembly enacted a salary equity plan which, on a one-time basis,

attempted to equalize teachers' salaries in those school districts where the average salary was

below $28,094 as of 1993, but did not include teachers' salaries as a component of the BEP. Nor did the new plan include provisions for annual review or cost determination of teachers' salaries under the BEP. Small Schools

III, gl S.W.3d at237.The Court therefore held that "the State has

not complied with the unambiguous finding in Small Schools

II

thata constitutional plan 'must

include equalization of teachers' salaries according to the BEP formula.' " Id. at240.

The Court again recognized, however, that it was concerned in all three,Sm all Schools cases

with "substantially equal educational opportunities" rather than with specific funding levels or dollar amounts because "[t]he objective of teacher salary equalization is to provide substantially equal opportunities for students, not teachers." Id. at243.

In reaching the conclusion that the salary equity plan is constitutionally deficient, we are rnindful that teachers' salaries will not be identical in every school district. We also stress that our opinion does not hinge upon the adequacy of the *528,094," which the plaintiffs average salary relied upon by the legislature, i.e., *artiftcial," "erroneous,o' and charactenze variously as an "inadequate floor," "extremely outdated." It is not the business of the courts to decide how salaries are funded or at what level teachers should be compensated, for it is the legislature who "speaks for the people on matters ofpublic policy" such as these. [Citation ornitted].

In addition, nothing in the law prevents a local school system from supplanting teachers' salaries from its own local non-BEP funds when such funds are in addition to its local BEP contribution. As such, some disparities in teachers' salaries from school district to school district will exist. In short, determining how to fund teachers' salaries and the appropriate level ofthose salaries are choices for the legislature to make, assuming of course that the legislature discharges its powers in a manner that cornports with the ConstitutionId. at242-43 (emphasis added).

7 125

ARGUMENT Standard of Review The standards by which our courts should assess a Rule 12.A2(6) motion to dismiss are well-established. See Phittips v. Montgomery Cnty.,4425.W.3d233,237 (Tern.2014);Webbv'

Nashville Area Habitat for Humanity, Inc.,346 S.W.3d 422, 426 (Tenn. 20Il). As stated by the Supreme Court in Phíltips v. Montgomery Cnty.,

dismiss based upon Tennessee Rule of Civil Procedure 12.02(6) requires a court to determine if the pleadings state a claim upon which relief may be granted. Tenn. R. civ. P. 12.02(6); Cullum v. McCool,432 S.W.3d 829,832 (Tenn. 2013). A Rule 12.02(6) motion challenges "only the legal sufficiency ofthe complaint, not the strength of the plaintiffs proof or evidence." Webb v. Nashville Area Habitat for Humanity, únc.,346 S.W.3d 422,426 (Tenn. 2011). A defendant filing a motion to dismiss "admits the truth of all the relevant and material allegations contained in the complaint, but ... asserts that the allegations fail to establish a cause of action." /d. (quoting Brown v. Tenn. Title Loans, Inc., 328 S.V/.3d 850, 854 (Tenn. 2010)) (alteration in original) (intemal quotation marks omitted). The resolution of such a motion is determined by examining the pleadings alone.Id.

A motion to

In adjudicating such motions, courts "must construe the complaint liberally, presuming all factual allegations to be true and giving the plaintiff the benefit of all reasonable inferences." Id. (quoting Tigg v. Pirelli Tire Corp.,232 S.W.3d 28,3132 (Tenn. 2A0T); Cullum,432 S.\¡/.3d at 832. A motion to dismiss should be granted only if it appears that "the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief." Webb, 346 S.V/.3d at 426 (quoting Crews v. Buclçnan Labs. Int'|, Inc.,78 S.ì/.3d 852,857 (Tenn. 2A0T).

Phillíps, 442 S.W.3d at237. ln Northland Ins. Co. v. State, 33 S.W.3d 727,729 (Tenn. 2000), the Tennessee Supreme Court set forth the standard of review for reviewing a motion to dismiss based on lack of subject matter jurisdiction. The Court stated:

A motion to dismiss for lack of subject matter jurisdiction falls under Tennessee Rule of Civil Procedure 12.02(l). The concept of subject matter jurisdiction involves a court's lawful authority to adjudicate a controversy brought before it. See 8 126

Meíghan v. U.S. Sprint Communications Co., 924 S.V/.2d 632,639 (Tenn.1996); Standard Sur. &. Casualty Co. v. Sloan, 180 Tenn. 220,230,173 S .W.2d 436,444 (1943). Subject matter jurisdiction involves the nature of the cause of action and the relief sought, see f.anders v.. Jones, 872 S.W.2d 674,675 (Tenn. 1994), and can only be conferred on a court by constitutional or legislative act. See Kane v.

Kane, 547 S.W.2d 559, 560 (Tenn.1977); Computer Shoppe, Inc. v. State, 780 S.W.2d 129, 734 (Tenn.Ct.App.1989). Since a determination of whether subject matter jurisdiction exists is a question of law, fan appellate court's] standard of review is de novo, without a presumption of correctness. See Nelson v. Wal-Mart Stores, Inc.,8 S.W.3d 625,628 (Tenn.1999).

Northland Ins. Co.,33 S.W.3d at729.

Count I -Adequacy

The Plaintiff school boards contend that Article

XI,

section 12

of the Tennessee

Constitution requires a specific, although tmdetermined, level of education funding by the General Assembly. While the Plaintiff school boards claim to rely upon the Smøll Schools cases in support

of this position, a cursory reading of the tluee Small Schools cases, and in particular the abovequoted portion of Small Schools.I/d conclusively demonstrates that the Tennessee Supreme Court

has consistently taken the contrary position. The Small Schools cases specifically declined to dictate either the specific level of instruction or the amount of funding required by the Education Clause of the Tennessee Constitutio n. Smalt Schools¿

35l S.W.2d at l56.Yet now, when public

education is indisputably far better funded than during the Small Schoolsera, the Plaintiff school boards ask this Court to do so.

Count I features broad.and conclusory allegations that the General Assembly has failed to

provide a system of free public education. (Complaint,fln25-27). The Plaintiff school boards cite the fact that in some "more affluent communities," parents are often expected to pay hundreds

of

dollars in fees as part of enrolling their children in nominally free public schools, and that parents

"may be expected to participate in fundraising activities or.to solicit donations from local

9 127

foundations." (Complaint, tf 23). What is left out of this account is that the State does not require parents to pay extra fees or participate

in local fundraising activities - local schools, school

organizations, and school boards may or may not do so. And while the General Assembly has recognized the value of such efforts on the part of schools, students, teachers, and parents, there is

no State statute or rule requiring these activities. There are, however, statutes that regulaf多 these activities. See e.g., the "school Support Organization Financial Accountability Act," Tenn. Code

Ann. $$ 49-2-601

-

612; Tenn. Code Ann.

S 49-2-110 (governing student activity

funds6).

Although the Complaint considers such statutes "atacitadmission that some schools have become dependent upon fundraising," there is nothing illegitimate in ensuring that fundraising is conducted

in a financially responsible manner. Nor does the existence of fundraising activities indicate in any way that Tennessee schools are inadequately funded -- school fundraising has no probative value

on the question of whether the firnding of public education in Tennessee meets constitutional standards.

Count schools.

I also alleges that "less affluent communities"

All of the Plaintiff

have insufficient funds to operate

school boards operate schools and educate children. While

it is one

matter to point out that more funding for educational purposes would be useful and would doubtless improve educational conditions for students, teachers, and administrators, far more is required to establish that alleged underfunding of public education is of constitutional dimension.

In the face of far more woeful anecdotal evidence in Small Schools

1,

the Tennessee Supreme Court

still declined to hold that any particular funding or educational level is constitutionally mandated.

6

Tenn. Code Ann. S 49-2-110(c), in particular, provides, 'oThe school shall not require any student to pay a fee to the school for any pulpose, except as authorized by the board ofeducation, and no fees or tuitions shall be required ofany student as a condition to attending the public school or using its equipment while receiving educational training."

10 128

The clear thrust of the Small Schools cases is therefore that the Plaintiff school boards' concerns are properly addressed to the General Assembly, and not the courts of Tennessee.

The Plaintiff school boards' adequacy argument essentially seeks to install this Court as a permanent monitor overseeing the General Assembly's annual funding of education. Thus, for example, the school boards urge this Court to order the General Assembly to make certain changes

recommended (Complaint,

II

by the BEF Review Committee in its November

l,

2014, Annual Report.T

11-16). The BEP Review Committee was created by the State Board of Education

pursuant to Tenn. Code Ann. $ 49-1-302(a), which requires the State Board ta inter alia,"lsltudy programs of instruction in public schools, kindergarten through grade twelve (K'12)," "analyze the needs of such public schools,"

oostudy

the use of public funds for such public schools," and to

"include the conclusions of the studies and analyses in its annual recommendations to the governor and general assembly for the funding of public education." Tenn. Code Ann. $

-

49-1-302(aXlXĂ?

(D). See also Tenn. Code Ann. $ a9-14A2@)(4XA). As part of this mission, Tenn. Code Ann.

Committee: $ 49-1-302(a)(+)(B) directs the State Board to establish a BEP Review

The board shall establish a review committee for the Tennessee basic education program (BEP). The committee shall include the executive director of the state board of education, the commissioner of education, the commissioner of finance and administration, the comptroller of the treasury, the director of the Tennessee advisory commission on intergovernmental relations, the chairs of the standing committees on education ofthe senate and house of representatives, and the director of the office of legislative budget analysis, or their designees. The board shall appoint at least one (1) member from each of the following groups: teachers, school boards, directors of schools, county governments, municipal governments that operate LEAs, finance directors of urban school systems, finance directors of suburban school systems and fiiance directors of rural school systems. The BEP review committee shall meet at least four (4) times a yeÂżlr and shall regularly review the BEP components, as well as identiff needed revisions, additions or deletions to the formula. The commiuee shall annually review the BEP instructional positions 7

The complete 153-page Report is available for viewing and printing at the State Board of Education's website:

http://www.tn.gov/sbelBEP/2A14%20BEP/FINAL BEP November 1 20l4-Report.pdf

.

11 129

component, taking into consideration factors including, but not limited to, total instructional salary disparity among LEAs, differences in benefits and other compensation among LEAs, inflation, and instructional salaries in states in the southeast and other regions. The committee shall prepare an annual report on the BEP and shall provide the report on or before November I of each year, to the governor, the state board of education, the education committee of the senate and the education committee of the house of representatives. This report shall include recommendations on needed revisions, additions and deletions to the formula, as well as an analysis of instructional salary disparity among LEAs, including an analysis of disparity in benefits and other compensation among LEAs;

The BEP Review Committee

is therefore an advisory

body

only it

makes

recommendations to the General Assembly and identifies areas of need but it has no policy-making

power or authority. The relief sought by the school boards, however, asks this Court to convert the Committee into a body with legislative powers. Indeed, the Plaintiffschool boards effectively ask

this Court to establish BEP Review Committee recoĂ?rmendations as constitutional decrees with supra-legislative authority. There is clearly no precedent or authority for such a prayer for relief, and the Smatt Schools cases stand for nothing of the sort. In light of the school boards' meager

allegations of funding inadequacy, this Court lacks subject matter jurisdiction over a clearly

legislative matter that lies within the General Assembly's authority. Accordingly, given the allegations of the Complaint, granting the school boards' relief would violate the Separation of Powers Doctrine set forth in Article II, sections

I

and2 of the Tennessee Constitution.

The Plaintiff school boards do a difficult job in overseeing and conducting the day-to-day

education

of schoolchildren in their districts. Nothing in this Memorandum of Law should

therefore be interpreted as, in any way, making light of the Plaintiffs' allegations regarding areas

of need for additional funding. But these pleas for more funding are not properly directed to the courts of Tennessee

-

they must be directed to the General Assembly. Neither the Tennessee

Constitution nor Tennessee law countenance the school boards' instant cause of action.

t2 130

Count

II - Equal Protection

ln Small Schools l the Court said that "[t]he concept of equal protection espoused by the federal and of our state constitutions guarantees that 'all persons similarly circumstanced shall be treated alike.'

" (quoting F.S. Royster

Guano Co. v. Commonwealth

(1920). Things which are different in fact or opinion treated the same. Small Schools

Virginia,253lJ.S.4I2,4l5

are not required by either Constitution to be

I, at 153 (citing, Plyler v. Doe,457 U.S. 202,276, 102 S.Ct. 2382,

2394,72L.F,d.2d 786). In this regard: The initial discretion to determine what is 'different' and what is 'the same' resides in the legislatures of the States, and legislatures are given considerable latitude in determining what groups are different and what groups are the same.... In most instances the judicial inquiry into the legislative choice is limited to whether the classifications have a reasonable relationship to a legitimate state interest....

I d. (crtations omiued).

The Tennessee Supreme Court has consistently followed the framework developed by the

United States Supreme Court, which, depending on the nature of the right asserted or a class of petsons affected, applies one of three standards of scrutiny: (1) strict scrutiny, (2) heightened scrutiny, and (3) reduced scrutiny or the rational basis test. Newton v. Cox, 878 S.W.2d 105, 109 (Tenn. lg94). Strict scrutiny analysis is required "only when [a legislative] classification interferes

with the exercise of a 'fundamental right' or operates to the peculiar disadvantage of a 'suspect class."'Id.

ln Small Schools / the Court found the rational basis test applicable to the question of whether the education funding system existing at the time violated the Equal Protection clauses of

the Tennessee Constituti on. Id. Under the rational basis test,

"[i]f

some reasonable basis can be

13 131

found for the classification [in the statute] or if any state of facts may reasonably be conceived to

justifu it, the classification will be upheld." Id. See also Newton v. Cox, 878 S.W.2d at 110. The rational basis test imposes upon those challenging the constitutionality of a statute the greatest burden of proof. Smatt Schools Âż 851 S.W.Zd at 153. The test has been described as follows: The concept of equal protection espoused by the federal and our state constitutions guarantees that 'all porsons similarly circumstanced shall be treated alike.'

Conversely, things which are different in fact or opinion are not required by either constitution to be treated the same. The initial discretion to determine what is 'different' and what is 'the same' resides in the legislatures of the States, and legislatures are given considerable latitude in determining what groups are different and what groups are the same. In most instances the judicial inquiry into the legislative choice is limited to whether the classifications have a reasonable relationshĂ­p to a legitimate state interest.

Statev. Tester,879 S.W.2dat823,828 (Tenn. 1994)(quoting Small Schools 1at 153)(emphasis in

original). Thus, if a reasonable basis exists for the difference in treatment under the statute, or

if

any set of facts can reasonably be conceived to justiS it, the statute is constituti onal. Id.; see also Newton v. Cox,878 S.\M.2d at 110. Equal protection does not require absolute equality. Nor does

it

mandate that everyone receive the same advantages. Small Schools

treatment] has a rational basis,

I, Id. (*lf [the different

it is not unconstitutional merely because it

results

in

some

inequality.") (quoting HarrisoÂĄnv. Schrader,569 S.\M.2d 822,825(Tenn.1978));see also Genesco,

Inc., v. Iloods,578 S.V/.2 d,639,641 (Tenn. tg7g). Unless the individual challenging the statutes can establish that the differences are unreasonable, the statute must be upheld. Small Schools I, at 1

54 (quotin g Harris on v. Schrader, 569 S.W.2d at 826) -

At the outset, it must be noted that the seven (7) Plaintiff school boards include Hamilton County's Board of Education, one of the largest districts inthe State interms ofnumber of students

t4 132

enrolled, and some of the smallest in terms of student population.s See Appendix. The Plaintiff school boards had the following student and teacher populations, and per-pupil expenditures for

school year2013-2014:

STUDENTS TEACHERS

SCHOOL

County: 10,455

651

$8,466.80

County 4,588

311

$9,160.50

County 2,275

172

89,279.7A

3,107

59,752.30

270

$8,686.70

County 5,g2g

34I

$8,293.90

2,629

166

$8,555.40

Bradley Coffee

Grundy

Hamilton

Marion

County 43,531

County 4}30

McMinn Polk

PER-PUPIL EXPENDITURE

County

It is therefore somewhat surprisingthatevery one ofthe 7 Plaintiff school boards complains of disparities in funding under the holdings in the Small Schools cases. The Plaintiff school boards have the burden of demonstrating that they are being treated unequally. Yet the Complaint contains

no allegation that these 7 school boards are being treated unequally compared to any other

8 Attached as

Appendix

I

is basic "Profile" information regarding the 7 Plaintiff school boards, taken from the

Department of Education's "Report Card" web site which can be found at:

http://www.tn.gov/education/data/report_card/index.shtml .

Reference to information from this publicly available source should not convert the instant Motion to Dismiss into a Motion for Summary Judgment. The Tennessee Court of Appeals has held that certain matters outside the Complaint such as items subject to judicial notice and matters of public records may be considered without converting motions to dismiss into motions for summary judgment. Singer v. Higlway 46 Properties,IlĂ&#x2021; No. M2013'02682-COA-R3CV ,2014 WL 4725247 , at *2-3 (Tenn. Ct. App. Sept. 23, 2014); Western Express, Inc. v. Brentwood Semices, Inc., No. M2008-02227-COA-R3-CV,2009 WL3448747, at *3 (Tenn. Ct. App. Oct.26,2009) citing IndĂ­ana State Council of Laborers v. Brukardt, No. M2007-0227FCAA-R3-CV,2009 WL 426237, at *8 (Tenn. Ct. App. Feb. 19,2009) (perrn. app. denied Aug.24,2009). In addition, the "Report Card" data is from the same public source as the "BEP Blue Book" and the "BEP Cor-nmittee Annual Report" referred to and incorporated in the Complaint.

15 133

Tennessee school board that is similarly situated. In the Small Schools litigation, Hamilton County

was one of the "large" urban school systems that intervened in defense of the existing funding scheme and in opposition to the small school systems' claims. Small Schools 1,851S.W.2d

atl4ĂŻ.

Yet here, Hamilton County's school board puts forth the same claims of unequal treatment as 6 other school boards that are much smaller

in size. The Complaint is silent, however, on the

questions of how the Plaintiff are being treated unequally, and to whom their treatment is unequal.

Instead of carrying their legal burden to state aprimafacie caseunder the Equal Protection clauses,

the Complaint merely makes the conclusory allegation that schools in some communities "with the resources and desire to absorb these [educational reform] costs have done so whereas schools

in other communities, sometimes within the same county, have had to do without basic services."

(Complaint, !J 31). The mere allegationof the existence of differentproblems faced by school boards in different Counties fails to state a constitutional claim.

As previously discussed, the Smøtt Schools cases consistently held that the constitutional interest at issue is substantial equality of educational opportunities. See e.g., Small Schools III,91

S.W.3d at243 ("the educational funding structure [must] be geared toward achieving equality in educational opportunities for students, not necessarily 'sameness' in teacher compensation.").

l/ithout more, neither the existence of disparities in funding between and among the Plaintiff school boards, nor the comparative funding challenges facing the Plaintiff school boards, state a

claim under the Small Schools cases. Furthermore, the alleged funding differences among the 7

Flaintiff school boards are insignificant when compared to the enoĂ?nous disparities (as noted above, more than double in some instances) that gave rise to the Equal Protection claims in Small Schools

L

The funding differences alleged in the Complaint here therefore also fail to rise to a

constitutional level.

t6 134

While the Defendants are aware of the low standard to be applied when a court reviews the allegations of a Complaint in the face of a Motion to Dismiss, even viewing the allegations of the

Complaint in the best possible light, those allegations fall short of stating a claim under the Tennessee Constitution. This is particularly true where the Complaint purports to rely so heavily

upon case law -- the Smtall Schools cases

- that runs contrary

to its own claims. AccordinglY, the

Complaint, even when read in a light most favorable to the Plaintiff school boards, fails to state an Equal Protection claim under the Tennessee constitution.'

Count

Iil - Viotation of Tenn. Code Ann. $ 49-l-102(a)

Tennessee Code Arurotated $ 49-1-102(a) provides that "the system of public education

in

the State shall be governed in accordance with law enacted by the general assembly and under policies, standards, and guidelines adopted by the state board ofeducation that are necessary for the proper operation of public education in kindergarten through grade twelve." Plaintiff school boards allege the State is in violation of this provision because it has failecl to follow its own laws.

Specifically, PlaintifĂ&#x; allege the State has failed to comply with both (a) and (b) of Tenn. Code

Ann. $ 49-3-307.

Tenn. Code Ann. ç 49-3-307 states, in its entirety:

(a)Notwithstanding $ 49-1-302, $ 49-3-351, orany otherlaworruletothe contrary, effective with fiscal year 2007-2008, the Tennessee BEP shall be calculated using the following criteria: (1) BEP appropriations to LEAs for the 2006-2007 school year, plus appropriations to LEAs generated for annual BEP component cost adjustments based on the 20062007 school year, shall constitute a base amount of funding;

(2) The state shall provide seventy-five percent (75%) of the funds generated for instructional positions within the classroom component;

t7 135

(3) The dollar value of the BEP instructional positions component shall be thirtyeight thousand dollars ($38,000) for fiscal year 2007-2008, and shall be adjusted in subsequent fiscal years in accordance with the general appropriations act; (a) The cost differential factor (CDF) shall be eliminated from the formula;

(5XA) The formula shall provide one hundred percent (100%) funding for at-risk students in kindergarten through grade twelve (K-12).

(B) "At-risk student" means a student who is eligible for free or reduced price lunch pursuant to 42 U.S.C. $$ 1751-1769;

(6) The formula shall provide funding for English language learner students at a ratio of one to twenty (l:20) and one to two hundred (1:200) for teachers and translators, respectively;

(7) The formula shall recognize the ability of local jwisdictions to raise local revenues by measuring the ability to generate local revenues from property tax and local option sales tax. This calculation shall be based on applying the statewide avefageproperty tax rate for education and the statewide average local option sales

tax rate for education to the respective tax bases of each local jurisdiction. No reduction shall be made in any calculation of a local jurisdiction's ability to raise local revenues from property taxes for agreements entered into by the local jurisdiction that result in payments in lieu of taxes being made to the local jurisdiction; (8) Each LEA shall receive no less than a twenty-five percent (25%) state share in the nonclassroom components; (9) No LEA's measurement of ability to raise local revenue shall be adjusted more than forty percent (40%) within the BEP formula in any single year; and

(10) The formula shall provide fifty percent (50%) funding for medical insurance premiums for instructional positions. (b) Notwithstanding $$ 49-1-302,49-3-351and any other law to the contrary, the changes in components or factors of the BEP implemented under chapter 369 of the Public Acts of 2007 shall be phased in, in accordance with funding as made available each fiscal year through the general appropriations act.

Subsection (a) provides that BEP funding

is to include various "cost

components."

(Complaint, T 35) One such component is found in Tenn. Code Ann. $ 49-3-307(a)(2). Plaintiffs allege that (a)(2) requires the State to provide seventy-five percent of the funding for "classroom costs" but that the State is only funding seventy percent of the classroom costs. (Complaint,

1T

35)

A plain reading of the statute, however, establishes that this is a mischaractenzation Tenn. Code

Ann. $ 4944A7@)(2) provides that the State is to fund seventy-five percent of only the 18 136

"instructionøl positions within the classroom component." Plaintifis do not allege that the State has failed to fund seventy-five percent

ofthe instructional positions. Thus, they fail to state a claim

that the State has violated Tenn. Code Ann. $ 49-1-102.

Subsection (b) requires "the changes in components or factors of the BEP implemented

under chapter 369 of the Public Acts of 2007 lto be] phased

"[t]o date, [the State]

in."

The school boards allege that

has taken no steps to phase in these components, resulting in additional

funding shortfalls of approximately 8600 míllion;' (Complaint,

T 36) (emphasis in

original). Even

assuming this allegation to be true, Plaintiffs nevertheless fail to state a claim because the same subsection further states that the phase-in is to be done

"in accordance with

frmdin

avaílable each fiscal year through the general appropriations act." Tenn. Code Ann.

$

g as made

49-3-307(b)

(emphasis added). In fact, when read in conjunction with other provisions ofthe chapter, it is clear

that the General Assembly intended to condition funding the BEP on the monies it appropriated annually. See State v. Alþrd,970 S.W.2 dg44,946 (Tenn. 1993) (Component parts of a statute are

to be construed, if possible, consistently and reasonably); Faust v. Metro. Gov't of Nashville,206 S.V/.3d 475,492 (Tenn. Ct. App. 2006) ("'Words of a statute, if inconsistent with its clear pulpose, must yield to the legislative will as found from a consideration of the whole act.").

Two other sections of the same education funding chapter in the Tennessee Code explicitly state that the funding levels provided for in the chapter are subject to the funds being appropriated

by the Legislature. See Tenn. Code Ann. $ 49-3-304 ("Notwithstanding any other provision of this title to the contrary, the only procedure for funding of education . . . shall be as provided in this part and to the extent that fi¡nds are appropriated for such purpose by the general assembly."); Tenn. Code Ann. $ 49-3-351(b) ("Notwithstanding any other law to the contrary . . . the only

l9 137

procedure for the funding of the BEP . . . shall be as provided in the formula prescribed in this section, and to the extent that funds are appropriated for that purpose by the general assembly.").

Furthermore, Tenn. Code Ann. 5 49-3-354 specifically contemplates situations in which

the legislature has failed to make funds available sufficient to meet the LEA's entitlemenJs. It provides that the Commissioner of Education "shall apply a pro rata reduction to the amount for

which each system is eligible." Tenn. Code Arยกr. $ 49-3-354(e). It even goes so far as to allow the Commissioner, with the approval of the State Board of Education, to "\Maive any requirements

prescribed by law, rule, regulation, or otherwise until the state provides the required funding."

Tenn. Code Ann. $ 49-3-35a@); see also, Tenn. Code Ann. $ 49-3-359(d) (authorizing the Commissioner to reduce amounts for teachers' supplies, duty-free lunch periods, school nurses, and reading coordinators on a pro rata basis during any year in which the BEP appropriation is

insufficient to fully fund the program).

Thus, it is evident that the General Assembly is not statutorily required to fully fund every component of the BEP. In order to state a claim for failure to comply with Tenn. Code Ann. $ 49-

3-307,Plaintiffs would need to allege both that the legislature has appropriated funds sufficient to fund the phase-in and that TDOE has failed to subsequently provide the funding associated with implementation of the phase-in. Plaintiffs make no such allegations. Therefore, Plaintiffs' claim must be dismissed.

Count lV

-

Unfunded Mandates

Count IV of the Complaint alleges that the State has violated Article II, section 24 of the Tennessee Constitution

by "adopting increasingly rigorous academic standards for Tennessee's

students and accountability measures for local boards

of education" while "failing to make

20 138

sufficient provision for the cost of its education reforms . . .." This, the allegation continues, "is fundamentally unfair to local communities . . .." (Complaint, at J[tl 38-40).

The fourth paragraphof Article II, section 24,provides that "[n]o law of general application shall impose increased expenditure requirements on cities or counties unless the General Assembly shall provide that the state share in the cost." According to the Tennessee Court of Appeals, "the Legislature is constitutionally empowered to elect what the share of the State shall be in the subject expenses."

Morris v. Snodgrass, 886 S.W.zd761,763 (Tenn. Ct. App. 1994) (no app. for perm.

to app. -frtrd). In fact, the Tennessee Supreme Court has recognizedthat "Article II, section 24,

the State Spending Clause, gives the General Assembly the widest discretion in assigning the relative shares of responsibility of the state and local governments for funding state mandated services." Small Schools 1, 851 S.V/.2d at156-

Article II, section 24,has been construed to apply only to laws of general application which dírectly or expressþ require counties and cities to make expenditures.

^Seø

Sv,afnord

v. City of

Chattanooga, 743 S.W.2d 174,178 (Tenn. Ct. App. 1987). ln Swafford, the Court discussed a challenge under Article

II, section 24,to the Legislature's amendment of the Govemmental Tort

Liability Act, raising the cap on damages: The City also raises the issue of the constitutionality of the General Assembly's having increased the limits of liability under the Governmental Tort Liability Act

by Chapter 950 of the Public Acts of 1982. Article 2, Section 24, of the Constitution of Tennessee directs that "no law of general application shall impose increased expenditure requirements on cities or counties unless the General Assembly shall provide that the State share in the cost." The City argues that the General Assembly's having raised the liability limits from $20,000 to $40,000 imposes increased expenditure requirements on Chattanooga without the General Assembly's providing that the State share in the cost. We do not agree. The General Assembly's having raised the liability limits indicates a legislative intent to provide a greater remedy to the citizens of this State and others who are injured at the hands of negligent local governments. This, however, is not an "increased expenditure

2t 139

requirement" imposed on the cities or counties of this State. The only "exĂženditure requirements" would be those that result solely from the negligent acts or omissions of a city or county itself; the Act does not require cities and counties to commit those negligent acts or omissions. The increased limits of liability of T.C.A. $ 2920-4A3@), (c) do not conflict with Article 2, Section 24, of the State Constitution.

rd.

There is no allegation in the instant Complaint that the General Assembly has directly or expressly imposed additional expenditures on the Plaintiff school boards, only that standards and

instructional methods have been adjusted.

Even more applicable to the instant case is Knox County v. City of Knoxville, 1987 WL 31640 at *6, affirmed and modified on other groun ds, Knox County v. City of Knoxville,786

S.IV.2d 936 (Tenn. 1990), in which the Court of Appeals addressed a challenge tmder Article II, section 24, to an education statute, Tenn. Code Ann. $ 49-5-203. This statute requires that the

rights and privileges of existing teachers "shall continue without impairment, intemrption or diminution" when a school system undergoes "annexation, unification, consolidation, abolition, reorganĂ­zation, or transfer of the control and operation" of the system to a diflerent type structure.

Tenn. Code Ann. $ a9-5-203(a). Section (c) of the statute provides that *rights and privileges" include "salary, pension or retirement benefits, sick leave accumulation, tenure status and contract

rights

. .." As in Swafford,

the Knox County Court held Article

II, sectionZ{ to apply only to

legislation that directly or expressly requires expenditures:

The County asserts that the statute violates Article II, Section 24, of the Tennessee Constitution, which in pertinent part dictates that "[n]o law of general application shall impose increased expenditure requirements on cities or counties unless the General Assembly shall provide that the state share in the cost." The statute clearly is a law of general application, but we are not convinced that the statute imposes increased expenditure requirements on the County. The statute is a rernedial one, enacted in order to ensure that no rights of the former teachers of one 22 140

school system would be diminished by the transfer of that system to another. S¿ø, ll'agner v. Elizabethton City Board of Educatíon, 496 S.V/.2d 468,471 (Tenn.

1973). Any increased expenditures incurred by a city or county as a result of the operation of the statute are too indirect and speculative to trigger the state-share mechanism of Article II, Section 24. The statute does not require that cities and counties abolish, transfer, or reorganize their school systems, and absent a local system's taking such a step, the statute imposes no expenditure requirements, direct or indirect, on a city or county.

Id. af 6.

The Court then went further, emphasizing that, in any event, the substantial funding provided to local school boards by the State government satisfied any concems under Article II, section 24: Even if we were to hold that Article II, Section 24, applied to the indirect consequences ofthe General Assembly's having adopted the statute, we believe that the state cost share requirement would be adequately met by the additional ADA firnds provided because of the County School System's increased enrollment. The constitution mandates only that there be a state share; it does not mandate the size or proportion of that share.

Id.

As in Cíty

oJ

Knoxville,

educational budgets

the State

in the instant case already shares substantially in the local

of all of the Plaintiff school boards. Indeed, the Complaint itself

acknowledges this. Accordingly, Count IV of the Complaint also fails to state a claim upon which

relief can be granted and should be dismissed.

CONCLUSION For the reasons set forth above, the Defendants respectfully request that the Complaint in

this matter be dismissed in its entirety.

23 141

Respectfu

lly submitted,

HERBERT H. SLATERY III ATTORNEY GENERAL AND REPORTER

\ç Steiling, Deputy Attorney General Michael Markham BPR # Senior Counsel Civil Litigation and State Services Division P.O. Box 20247 Nashville, TN 37202 (61s) 74r-2370 Kevin. Steiling@ag.tn. gov Michael. M arÞ,ham@ag. tn. gov Attorneys for Defendants

CERTIF'ICATE OF' SERVICE

I, the undersigned, do hereby certify that atrue and exact copy ofthe foregoing has been forwarded

via Federal Express ovemight delivery service, to D. SCOTT BENNETT MARY C. DECAMP LEITNER, V/ILLIAMS, DOOLEY & NAPOLITAN, PLLC Attorneys for Plaintiffs Tallan Building, Suite 500 200 West M.L. King Blvd.

Chattanooga, TN. 37402 on this 23'd day of April, 2A15.

¿ I

(,

Steiling Deputy Attorney General Civil Litigation and State 24 142

APPENDIX

143

Profile $chço¡ Year 201}2ù14

þ¡strict Name

School Nâüè

Mchl¡nn counly

All Schools

Student Ethnicity:

County

AlI Schools

McMinn County,

All Schools Edueat¡on

Mr. Kevh Huffmâil

O¡slrict Nomr Þístríc: Ë¡irectrr

Distrlit

l'rc¡¡inn Gounly Mr. Mickey lllevìns

l

Grâdo3 Served

30815.20/. i

t K-12

I

:

Dlstr¡cl City, ST ZIP Safê Schoot

:

D¡strict Address

l

3 South Hill ST: All SchoÒts Safê a

5,316

Students & Teachers: McMinn County, Tèachefs

341

/

i¡la

Literåcy :

Nrmeråey

tngli3h LâsmðrStudent$

41

English Leamer Student Percent

Liþrâcy ånd Nûme¡¡Þy

û.?Vc,

Ecônomlcâlly 0ísadvantaged Studsnl parcsnt $tudênts wìth Dísabil¡tles Studsnts w¡th Disåbilil¡ð$ Pôrcênt

îho Ïrnnr*eg !l{8-AcëscAâs¿$¡¡óñr Svsicm {ivêÂsl iú Þ6þüÂl¡¿âÌ ñriþ* uscir, ñ¡åèuBlhâ¡¡p3d.t d!ù¡cb, -I¡s lVÀÀ$ Ooriros¡ks sùd 13âúì!è.s !n hc siâlg!ilr øo!Îe*.âlr3 d g¡$Ès r{ ddeilÞ iÍon} y*!.!çyee!:sted h3fg ilc *rjfs! tr¡¡ ä3eð* yed: ðr tìè Lhúcl u wt*llevel bè6sd cì stu4etraferlDilrs:.s * slåi.vide a$eca ßÈ,tts sc.r* ál ùvdó13 iù¡jé¿* ãíd tr¡&s. Ërr dsti¿rs ü¡¡t qtÊl lè ldút ÈUd¿nli if, g?@3 li'2 lr yrs! ¡* siìilb úrÈy à,e *eilsb!ê.tiù!!e!¡jdér &ê ¡1.1u¿"d ¡h ihû (e.pr$lB. Tnâ lilr ðy¡S¡ìr;n ð! ils tÉk$ i:.k,î4í¡nå¡ $3K8 dtrJh: had è&iy g¡¡dêr d¡& in¡i¡xled;n sß'? ccñ!$tu 3åd y*ãr

6?.69/o

el!¿lc

12.5o,/o

ss,293.90

l

l

i:f{r/r:,./.r.rr{,i-l?,rlirlr.,!ír!¡ri!$r.çá.¡*riìRr,5*irs'iidås::i:i/¡Aê:$þ.gki¡i

}l*{

iì,âÂSçinpodtrs.¡êr¿Þnnodsi¡1'í*¡lêârdrr*mFtrssrsnÈ

% Betovr Easic

S

7,

Basic

'l$i

ùii

Americen

^ficsn

Over¡ll

Administratoß

J

Bhck or

TVAAS Composites: McMinn County, All Schoots

All Schools

Pï:Püpilfï'l,lqditrla

HÈpãnlc or Lal¡nr

X l

Values reilect Ocicber 1 eêrollnÉ¡t

Students

esian

m

J'Ltrire

Athens, TN 37303

Schools

I

Frctìciên! |

i"nlclséa¡dihdicâlrtr¡¡¡disinûÕrshrêliÂ

ê{:ra¿di4 ìh4 ãrÞctra Sorô, i.ryel -1'ndicñhssÂlhrV â.ê nrbnÍ ¿húil|Sç rvfrr,ìed eród, *d i.ðrlâ 1 3¡d ? ln. d¿er¡ frâtfì?, Âry ñdhr lðls h3il lïr ûeiled soú. Thr tk$nllivê.ls üú¡scs{¡ inir36 àll ðrdilåbl¿ iåtê f¿i¡ lhê F-? i9Al-1C) æsÈleftani snd tô,i d ÊpÊi.?Hã T¿ÅP êrð Ëilc !ú6b. fhr TrJ¡¡S lil.ã* ¿o¡Srdb Ìra!¿ô. a¡l ü!e¡ú+"jyJlssf l.sis i.il!{3r h hr Õv€r€il l'1Sg ¿oaÐldle.-lhr-:1ÁAS Nu¡r¡érscy Cür¡Fde !}dudèe dl ¡uû'6&}lbc!¡¿it¡3sS.{!Cei l¡ lhç C$mÞrdt3-'lhÈ fVÀÀS lkf¡cysnú¡{u(E.úqJ iorÞ!3iu ûi.lü{è6 âfr lsd, :rùudcd ilrlÌc Ldarr¿y Coüpe¡tú ""rdlVÂÂ3 s¡d:hÐ í{uÌ!ùìadfúorÐ(,:ite. Sarû derr:iod lV¡!4ê d¡rÐún¡ bovø*(J Òr ì¡$ Publc Íu,\s Silé rhis:ri..h!t, t9l!,qit!!rli¿Fr¡!l:Jl

?' .,l,dvanced

McMinn County,

Average ACT Composite: McMinn County,

All Schoots

Schoots

coftposireEtu.s û.ô 4.0 8.0 12.0 16.0 ?0.û 24.6 2A.g

3-8 Èlarh 3-ô Rëôding

La¡g{agê

3-3

Scieræ

rF å ¡aliorål .oìlege ,d,nissions èiam ihat ¡¡clilCe6 subicc, levnl lêsis i¡ F:xolish, .tltt!!. Rcârl¡ng êl.l Sderce. $lildenis receive sco.es ihô{ râ¡ge f.ôm I {a 3g o¡ Êðch srbjrit üûd ôn Õveråll Ccß poôilê sccre. Âll lennrssee sluceni6 aæ riqir¡red lo uke rh3 À.CT ¡r 1 1th gr¡de.

tCT

3€ Sacial Stud¡ls Algêbr¡ I Algebra

32.0 36.0

ll

giôlogy I

€nglirh I English ll

Graduation Rate: McMinn County,

fngljsh ¡ll

Atl Schools Al, Schools

US H¡etory

c.û

?0.0

40.0

60.0

Bo_t

100_f)

The Grâduît¡crì Rê:è *è¿s!råi !hå percenlågÊ oÍ ¡tudents lvio gr¡È'râled l¡gnì high É'jlìo¡l T¡lhir frlr year! aôC â s!üx¡¡eí oul ûfilì!'sr slude,ìiJ ll¡ål rnlûred lhr ú¡ûth ç'"de loryêars sgd¡ùr.

Ìë¡¡é6see üompréhúneivé .Assêssrrì¿lrl Prcçrêrn, orTC¡.p, ¡r a Écl oi sla(¿si{¡e assêsÊ,rer?Ë il:vcõ in Teññessee lo rea3ìire $tuieñls'$k¡lls ¡n., pß!Êçs. ßtrdents in gradÊ! 3"¿ tôke the Açhiever¡ent Je6t, and hiah se¡:sôl sli,ieFir likÊ ËnC ç, CgunÊ exðbs lor var¡oi,s subjrcls. Sri!

Tirê

rlent

¡*!!hs aß

calesodzed as bèlow bâiic, bai¡c, prañci3nl or advãnred. .Strrienr$ thðl arË Ðrcfþ

cierl o. advafiæ(i o.¿ c{firnonly îons¡dsrad tô be at cr abov€ qrad€ lêvel. Subìecie t¡Ll lewet thaù Jc valid lests andrcr sub]eDts llith üi lÊås! 99 perceni or less lhan 1 percei{ of st!,de¡ts scÐÍi!?g ìt åry one p{clìc¡ercy ritegary åre supr.essii ¡¡ acctriêrce wilh ledel"l ptvacy laws.

144

Profile scht6l Yeat

D¡strict Näme

Sch0ol Name

2013-201 4

Polk County

Áll Schoôls

Student Ethnicity:

Polk County, Afl Schools

Polk County, AlI Schoots Ëdurällon

Mr. Kev¡n Huffrilan

Þlsl.ict N6ms Oistríct Dirêctûr Dlstrlct Grades Servêd Dìstricì Addræs I

Mr. Jamùs Jones

!

PK.12: 131 Stêphens ST

:

O¡sr¡cl Ctly. ST ZIP Safe School

Nõlive Amedüfi i Alaskât

57 I 2.20/0

Pólk County

itr

l,r.iu"

:

HBlack

I

!Ë

H¡epûúlc cr Lgtino

I

wtlu

i

Benlon, TN 373Q7 All Schools Safe

:

School¡

or Âtr¡c¡n American

i

tì

2,51'7

Vâ¡ues reflect Ðciober

I I Þ¡.ôllmerl

riatd

TVAAS Composites: Polk County, All Schoots

Students & Teachers: Potk County All Schools 166:

Teåchers Admìn¡atrâtors

$tudentg Economically Þ¡sadvõr¡tagsd Studant Farcsnt Students w¡th Þlsabilities Studânts w¡th Þlsabil¡tiês pârc€nl Per-Pupil Fxpendlture

Overrll

Uler¡ty 2.62þ"

:

Nsmerscy

65.0Y0,

351

LilerâÈy ând fiüme¡åêy l

13.4ú/o

9S,555.40

:

i

fh¿ Ìar¡¿s6cê våk¡a-Ádild Á*!.:Ê$€ìtSlsith (Í'/.Ä-4sj ¡úêsiè!Êìbål s;¡F¡sd€t¿ tc meÐr3 th¿ ¡âç¿d ôl disÙicc. sri:lolâ strd isådieß on lhts âì¡{ëil¡r pralrÀs iâks d græts rf triçderÈ lon¡ ïeù.ir-yèår. I¡ê ÏVSS ir¡:po96 ¡lsld hsrs se rêres l:!ai âterss g*;r êttre ühd $ dt¡*ilsvel bsed 3r! stute¡tr{iiÐrr¡ârcÞ orì clêievjde sses} rs¡l åùtès dl wrilåS* c!¡j{.$ ìild UÊd¿Ê. Ëûr dstidÉ ertt q{e* 1,} le¡l vlud¿n:i iit 3de! K'2 it Tè*Ë;¡ vtrá ítry {re ¡'.rilùblâ. sr*è e;dér¡ *rê i}:dréd in ;hR $r!Þotite.

Yh, lil¿ rvC¡tfê at¡¡e ¡sl.r¿;:'ik,,ìd,.dr*vå{¡ dr;ùb* h¡d 6aif g.âdet d¡uiinriil,èd i!f¡e¡? c.rtodtB e3.hyBtf i:t*¡:lÌs.Jrá:.Llei*?lç$,vçlir¡d¡i!çiçi¡.er¡ir:¡*üsiår::ry*"å$rþ.-vje.$ùhr

î1jå4$çiðÞo6jþ*4r¿p¡nßds¿r{s.å¡êåcdrr?rne¡i3n¡Ðs.É.

iRAka*dSindic¡ì¿drirndis*iú!rrsth}ôi¡s

rhê r¡F?ci4r grard. iwnlSindç5hsâlhr¡*t nìãhnû rhnulE?.v¡t?¿id g{,w, *l i"\'111á 1 ard: in. dis¿lbÂttryarsnúbçlôrib¡nb¿úE i¡ed{rêÉ.Th.û1sêll:','¡3SJòn:prsÍeinÉrdeEåÍ.;åt*l¿d€tâlrGt À$s'ft?îì ãrd i:rm dl 4ri¡iâH¿ TCAP *c Ê¿r¿ i¿sh. thú Tì.'1ÀS bbr?* itfrF.sk ¡¡drCês d, ¡ii_ ertc.v"lelssd *aß tìú!ds! h ihe Oterál ;'v'.4S çôataé¡tè. I hs itlÁAS *J*râÉty Corpc¡ie :rdsk å,i ¡,un5âì* fcrucê¿16þi¡dui¿i i1 ihÞCverãf i\å¡¿t CàrÞt$tÈ. lhÊ IVAÀS LftÉr¿Lysta l{uflêrsy i{rrÞtlr€ irdude$ åll tcdt *¡¿|r4Èd h {rÈ UsB¿y Cd:Þdk *!¿ ih4 tr,nle.r.y¿srs¡ít¿. ll.{3 dêüièd !VAAS i$3 re be eH¿4 n ì¡â tubl!

Iú\À3 Sile r¡tr$älÌj:{ilf ,-8.s.jsgt .v.,..î.,!.ì9!H¡!Ê¡i

Êrftrfróq

rh. X'2 isAl-lCÌ

J

%

EellvBastc

$ i,o3as;c

*il'ra Protìdenl

I

zoa.Jvanced

Average ACI Composite: Polk County,

Achievement: Polk County, All Schoots

All Schools 1E.'l

3-8 Malh

3{

s.0 4.0 ô.0 12.0 16.0

Rëåd¡ng La¡gsege

g4 Sci€¡ce

?0.0 24.6 2E.0

32.íì 3ô.û

,ECl is a nitignal rolle¡e admissiont exsm thal jn¿h,C6s tubl€cj level 1ôsi5 ii Hrqlirh. Math. íìÞãrhlg ônd Sdenæ. $l{denic receive lcc€s ihât rânge t om I lç 36 c¡ eìch stbieit õoil a¡ overgll Ccl* Þos¡iè sære, Àll Tênnasôee ntudenis ¿.e re<NiÞd to tûkô $e ÀcT ¡n I lìh t¡êde,

34 Social Stud¡es Algebr¡ I 11 0?.

Algebra ll Êliology I

Ërolish ,

Graduation Rate: Polk County,

Fngl¡sh ll

Alt Schools

€ngl¡sh lll

a7.6./"

.All schoolE

US ¡li8tory

3.t

20.0

43.0

60.0

sc.c

100.0

The Grâduai¡an Rå!ê rnêas!Ës ths perccnlãgÉ oi stud¿nls whc Craduâled ftonì lì¡gh Érho¡l tìlhir loùr loârs ¡Ðd s silrrrìeí !'ul cfllìor9 slu{irris tl¡at ontorÉd i¡e niolt $täds fèryeers ¿atliei.

¡s t :êl út sl¿l¿wi{je assessrlo.i:s 't-çnñessee lo meas¡jrê stu.jeñis'skiilt ¡nC FFgress, Slddenis i¡ gmi¡e9 Ì-å tôko tre ûlveð i¡ Àch¡ive¡nÊnt :ei{, and ¡iAiì sclìÕtl sluienls lake ÊnC oi Corr$Ê evãm€ ftrtarious subiecis. Sll" îl!¡1t reÊillls ¡ß câlegod¿ed as be¡cw basÍc, bâÈic, pEl¡de,1l or ad\,?ûceC. .:tildenls lhai are prclicient ol advänGd âæ ümmont coDs¡dere.Í lo hÉ al cr ãbo!€ g.ad6 level, Sub¡sci. b4lh lewerthõl 10 val¡d tests ând/sr sub;ects lvith al leåsl 99 gr*¡æÊt oÍ less 'ùân 1 Pelcen{ of students scttil! ¡ñ a¡y onô p{úf¡cÌe¡Ëf c?legory åre êuporess¿d i¡ accori¡rcÈ *i¡h ledÊrat ptivacy la't1s-

îhê Terðesseo {åfi¡J[¿heil!¡¡6,qcsê6€,:ìont Fro0râm, orTCÂP.

145

.

Profile School Year

Сs:rict Nõme

School Name

2013-201 4

Mariûn County

,Ell Schools

Ethnicity:

Marion County, All Schools

rion County, Alt Schools Ëducalion Commissíoner D¡slr¡ct f'¡amÊ

Þ¡stÍct D¡rector

Mr. Kev¡n Huffmân 195 I 4.5%

Marion Counþ'

I

Mãrk Griffilh:

:

0ístr¡ct Grades Sêrved

gi

PK.12

Þ¡slrict,qddress 1

;

D¡strlct Ctty, ST ZIP Safe School

i

Hispôn:c or Latine

ËX Black or AlÍican Am€rÍcân wtrrr"

204 Belsy Pack ÞR:

I

Jasper, TN 3734?

All Sêhoóls Safe;

Schools

10

4,027 l93.oo/o Vâlues reflâct !}clober 1

e¡.ollnËil dala

ïVAAS Composites: Marion County,

& Teachers: Marion County,

All Schoots

Schools Teächôfs

270

Ad¡r¡¡nfstÎdorg Studenfs f;ngl¡sh Lû¡rnôr Stud¡nts Ëngl¡sh Learnêr $tudent Percerìt Ecönom¡cally D¡6advantagêd Sludânl psrcant

2ø

Stüdents wìtlì Ois¿bílities Studånts w¡th Bisâbillilôs Pêrcent Per.Pupil Expenditilre

.

nriar

Ovsäll Lilerô¿y !

4.330:

:

f{qmer¡cy

{3

Literãcy ând Numèråêy

:

1.0%

!

72.60^' 14.5o/o

$s,686.70

Ìs¡¡Hê. !'âlir*ÂiécC Âs.s!$ónt Svsi.& {ÌvÁÃSJiÉ âs!åtetird ãrðiysscs¿ila rcÃsur¿ hâ ¡npãr¿ld'sti4l6€d:oól€ sod i.e.r!€i! or ih6 âiå13¡r¡c prrçr4s iêlss dgi!û¡! r{*derìts hrì yed{ùyèar. T!:d fV-Uô iorlDosnca licîed klr !!e rrorës llâ! *3reèe !re*4j1 èt h¿ !.hrc¡ or cdr:l¿r€l b¡eed.D åùdsnt ÞrilÐrrâr.È or elder¡de â6:3ßt meôls ær!$ ¡ll ,vriläb¡s eúj<r* fr¿fÈË. Ëor è¡¡ê1s grli ot{e! lè lÈ¡ std¿ênß h f*eâ K-) ir yêär iÌ vhr.h tlrt '¡d in lhs.o4ÞoBi¡e. n?ê iryäiìdrê. oi63 soores åre i*&r¿¿d lh* fh ¿v{i*iÈ ¡* !¡e ¡d{!r¿ i:r,kr!ó{:i*â* v?¡{t dlåù* h¡ù è¡Èty gåde{. d¡t! iñ{:jriled n f¡år c64)*ilês er.h Yre'

7hõ

628:

:.

¡

tl!þ.:./l:93rir,ir::!?;riflÌî,Ir,!:i¡y!s*dai¡.Ër.ti1i*!rsi{iñ:l1!â49:4*i-¡,!r,¡.ls

;Vã^çi;.ryiiltsãrr:rpilÌad.irr-5âiålstrdrß¡ñ'Þr¿6imr.s. i..c.l6aâìdii¡d.¡lchîindnii.,ìnirthlnlÈ ey*¿dùg:he r)Êiiìâd $&6.|wrl3in,ftgt¡rftâl h¿! ãr. n¿Ln9 Srü!ëç rtrerii, f.66, *d i.øv¿h 1 s¡d:indìiÍ¿ *aìfì€t rr h¿Ëit lúâi lhón lie úxÈri!êd Sc#. ths 0?sê{ ÌwÀs iÕrpcsh io*ice: fta ri-2 iS¡.T. ! eì âe!e!sr3rì s.d l âh dl ?iÞ'¡.eãâ laÃP a.c Eùi t6þ. Th6 î!,AAs Litaary aorw!¡le i¡*dèe âts l¡e.øi{lrseed ÌÈsls ii¿l!&ú üì lhs o!ê¡dl i !'.v.9 üôÈlr¿{lè. ¡3 ¡ !åÂ5 Nursråct c.îDûdié icdrier eÏ nu*erayleu*ei tcs lìrluåC in Ìhe Cyerill l!¡ris cþr'p4lle. Ìhs ]V,\åS Lilcfåq ânl ilurÉr{./ iqrÞor¡të ñdudrß dl lrstt i'rìc Lilaroq ûû:Ípodlü lid:hÐ ítuñ!ò,rcl coírp.li&. ü.rc do$:iåc : V¡r4e C{ô can boüøv(lan ür ['!b[c -1

I

% Belclv Bas¡c

&l

%

3¿s¡c

*

%

Frofìciénr I

¡rrû{cd

z; rr'dvanced

i vÀ¡.

ACT Composite: Marion County, Schools

Achievement: Marion County, All Schoots 3-8

â $il? thiÞ9:f !.¿.9:i;!,Il.I,.cl:Lf !.ßþgtH,!ldi

Mrth

f).ô 1Ír.(1''

3-8 ScienDè

3{

16.9

Cornposile

3-¡ Rêådlhg LaRgu¡ge

ô.0 12.0 16.0

20.0 24.ó 28.0

32.0 36.1i

i nalionfil tollegô admìr$ir,ns ezam ihat ¡nch,Cês suirle., lëvel teô* i¡ Ën0ìi€h. Mâlh, tìeã.lrìg aÊd SÈience. $liliêris rece¡ve sccres lhat r¿nge iom f tç 36 cn e¡ch st¡biecl aûd ôn ovÊrull CeÈ posile scôr9. ¡Jl Tenres3ee ntuienis û.e required to rakê the Acl in 1 1th gräde, ,¡.c'l rs

,r1?:.

Secia¡ studiÞs

¿.0

Alge¡r¡ I Algcbrâ ll gíology I Fngl¡5h t

ation Råte: Marion County,

Êngl¡sh ll

Schools

€nql¡sh lll 0.û

2ù.0

4¡.0

6û-0

B{1.0

100.0

i4{negsec iìÐl)Èß,ìenôivg À¡gscsHenl pr!!ìrarl. or IOAF, ¡s å 9ol oi stâlDwicô assessûìgrìi! iiv¿r ir lenneesr! to meåsu," slude¡is'skílh and F¡tgrsôs, stuierlls ¡il grâces þ8 tak4 thc A..tt:everent : er?. ê¡C high 5çhrol stildens lâke ård ol Co¡Íse exårns fcr vâíitr¡s ${hjce',t$. ñtrinni ¡êsulls âre catecorired ¡r below båsiç, bã$iÇ proÍc¡eðl or rdvanred. SfrieÞis f,ìði ¿.e prefitient ar ôdvôñcei rre comiÌon[, cÕnsiCercd lô be âl orâlrr,ve gftde lgvFl. Sutje..l3 wilh feNer lhðn ls vâlici tesls ani¡/or gubjecls with ât leaôt 9g percenì o. lgsc thû¡ I pèrc?rl Ði students scoi¡g in

Thû

Áll schools

84.0%

The Grûduatíon R¿rê æ€âs¡Ës tlìe perceotsÉe oístuderls who grådu¿ted lr¡rl ¡?igh s|,lo¡l {ilh¡rì l¡lr yea$ aìC e súÍrnÌìeí cql sfllìoå¿ sìudorìi; ttial ontered ih¿ rin8, çra¡je low yeárs cârl¡Ðr.

anl ore prctic¡ercy câlegory.re suplrre56ed in $ccord¡Þce vÍli1 federtl privacy lâw6.

146

:

Profile S¿hool Year

Þ¡str¡ct Nôme

Schûrl Name

201?.2014

Cofee County

,All

Schôols

Coffee County,

Student Ethnicity:

All Schoots

Coffee County, Alt Schools Eduratton Commissiosêr Ol3tricf Namô Dlstríct Directcr Þlslricl Grad6s Sûrvad Ðistrlct Address I Ðlsrriel Clly, SI ¿lP Sa{e School Schools

Mr. Kevi¡r Hulfrnân

Ì

:

Dr. Lauonna Mcl all

:

Nal¡ve Amçriün iAlaskân

240 I 52%

Colee County

l,rsiu" l! Black or,{tricin

:

PK.12

1343 NlcArlhur ST

;

Manchesler, TN 373â5 All SchoDls Safe

:

Amerjcan

m

Hi3pan;c or Lll¡nô

I

wtrir"

ì

I

4,169 / 90.S% Vâluss rellsct Ðci.ber 1 enrollnìenl dala

TVAAS Composites: Coffee County, Schoots

Students & Teachers: Coffee County, All Schoots Teåchêrs Âdmìnletråtðrs

."n*n

% BelÐwBåsia

i€

%

SasiÈ

S

o1"

59.1%

Ìc¡nKc?

t/atus-A#ed As¡re¡ìént system ITVÀ€; b

&t3l¡#ì

3^dytìs c6êd lo ftcãslr¿ lh¿ ,np€c! oi disldcs.

13.4ùlo

ì

hsí! ïe:¿ofe!

t¡.qrliw.lÌc,¡:l?ú!q¡r,!:,s!r-ìlp.fii*r..:sb.ärj*{¡r:*Hi3s:iir.la*Êihgþ*¡þ:

Ì'rìitrÊçihportuâreftpùnßd.naaS:¿al.sdtttrJnå{¿;,iñran l..v4l$aãdSisdicalther.!ii6v¡*sdrdis e!¿a¿d¡nç ihô errcl6d qroffi. i.¡!Ìl -i indlolstâl Ée/ Â" hatsng ¡hðrl hê rvttrl.d 1.#, eJ i 4vðlc 1 *d:l in' &ale Sâ1ir?y â'e mókglú.s hs h¿ ú&riÎâd 906. The Û{sãll ;!'3iS iûhv$lo ¡n*dÉ Âl¡ e;dùlt dãlã f.il tha R'2 iSALlCi a!êsù.rl ¿.dtuh nlì Êp{.çtlâiCÂP ?¡d Êü¿téss. ih¿ 1'l^ÂS nèrery Cor4*13 h*dås a[ll^ *.ai!.lrrû!ré !Ési! r,i¿lüúer iiì hs ùcrel :'1&S üonpo*¡tå. l'h¿ i t'Âis ¡{xr*e¿y CoÌÍs*ê ¡sJudså t{ ournå€rr S Li&r¡ry ând l{{r¡er$y iorDulle dúdes dl lsstú þqrÊed lssls i*.lu*d ir¡ :hå Cr€râll lVÉ-43 CoFpdÌÊ. lhs ì' i:!du4ec ùr r!¿ bicrlry C!!t poùit¡ aú ihÈ Íunlcrùcy ùrñpe!ìt{. ¡,lo¡t dðto¡¡!{ iVÂ^6 Ctu aM bo u*(d n lh¡ t)übl¡c :\",i.S ì:il¿ rhilp$:ln!&:,ig'4u:*Él9gE]![*l

vi,a,avanred

Average ACT Composite: Coffee County,

All Schoots 19.2

Cornposile

c.0 4.ù 8.0 12.0 16.0 ?0.0 24.4

Largs¡âÊ

3-8

â

ie*iè.s rn:he åùâ&¡Íi(: prst¡e!û id3s eigouls ddrdeoe fcn ysYi!'yèar. Iire T''SS iq¡ìPod¿s ti!: êree!, i:¡!Mr dtre lrhúcl or ú!h.!¡3Yél lssed $ du{ent Xúùinâr., o} *¿ievrde *¡êse *:erbo¿te&llsvåilålilelsjirt$nid!.;iee. Ë.rdlri¿þt¡sû$sitcl¿Ê!euJsrisilSrê¡ctl(,2iltyåâEii:ç1lkhftsY ì¡.e ily¡ildile. tw¡Ðo{e$ *e ìrldo(iåain ihd(:i:ipoti¡!. ihå fi|, ðvdi*¡ie êt ¡¡¿ ¡nlo* iv.k:irdr:¡fsB !*,ilr tl$* håd erÌly g¡der d¡* ¡nr;rdêd m etr cor{).d$ s:tch Y¡e'

¡Aî¿d

3-8 fu¿llr

3-g

Ìh¿

s4oolo ürd

Achievement: Coffee County, All Schoots 3-8 Rêâding

Nqme¡åcy Litêrâcy ând Numeråêy

1.7!/o

,

lrncent I

L¡teråcy

78

Studants ì¡,¡th Þ¡sabilil¡ss Påtcðnl Per-Pupil fxpendìture

I

Over¡¡l

a, 4.588

r""*",lliillil'

English Leanìer Student Percent €conomícally Disadvanlagad Studûnt Pêrcênl Slu¿lênts w¡!h Disåb¡lit¡es

31J

sc¡enre

28.0

32.3 36.0

.ECÌ is â ¡atir¡âl ¿ôllege ad,nissiÕni exrm ihat inchrCês subjecJ,cv{, tôôîs ¡l h"Èglish. Malh, fqêêdflg ûñd ScÌÞrce. StuCeni! rsc€ive scc.es ihal Þnge from t ta 36 ci eåch snb.i6.t and ân ove¡"ll Com' posiie sôcre. Àli lênnessee .ìude¡:6 o.ê requ¡Þd lo Eke {1e ÀCT in l'llh gr¡de,

social sludlès Algebr¡ I Algcbra ll Biolðgy

I

Erglie¡

I

Graduation Rate: Coffee County, All Schoots

Ênglish ll Êngl¡$h lll

EE.9%

All Sclroolç

Us Hlstory ?0_0

4t.ç

60.0

30.c

100.0

Thô Gnduût¡or R¿ie ireãslr.â !h3 psrcenlåÉe ol studelts $4ìo gråduâÎe.| fronì high sclìo¡l with¡n lour _vaâr! ãÐc å silnvyìor rrut.fllìose sìudeJli5 tliât srìtsrúd ihe ti¡th ç'äde feurye€rs eail¡sr.

îhe îèrrcôseê ûorlpróbÉûs¡ve Agsôss,rûrtr Prêçrðü, orTCÂP, is I sêt 6t s¡attwiue âssosstt!4r:ÎË g;ver ia I e¡ô6sseè tc measurê stuiÊ¡iJ skills årC progßts. Êttde¡ts in gmdnt 3-å lâkc lhe Àchieve,¡Êf,i ïest, a¡d high s.*ool sfilieÞls lcke Ê¡i, ai Cour$e evâÐt fúr varioil$ tulrjç{is. Slilda¡t res!ft5 ars calegorizÈd as below bâs¡c, bâsic, prafici?nt sr êdvanced. StltiÈrtt tlìai 3ß Drcfts ôie¡l or advence{: ¿re @n¡ñon,y ûor!sidersri to be 8t cr above g.adê iè'!el. Subjecl! s4lh le+€.lhan lc val¡d l"9ts a¡d/ûr gDbjects ríth ai l€årt gg Fercen: oî l99r tliân 1 percent of students sco.¡¡ç iú s?ly ons prcÍcìi¡cy @legory are suppf€çssi ¡n acçordârct wilh ledgßl pl-tvacy la't1s.

147

Profile School Yeat

D¡slrict Nãme

gchool Nðme

20't3-2014

Hamilton County

All Schools

Hamilton County, All Schoots

dent Ethnicity: Iton County, All Schools Educallon Commlssioner

Mr. Kevin Huffman

:

NåmÉ Hômiiton County Þirector R¡ck {ìm¡th Distrlcl Grades Strvêd PK-"12 D¡str¡cl Address I 3074 Hickory Valley RD D¡strlct C¡ty, ST ZP Çhåtlânooga, TN 37421-1255 All SchÖÖls Sâie Safe School Schools 78

3,687 / 8.570

Þ¡strlrt

D¡str¡ct

.

.

25,060

't3,560/31.2%

/

V¿luÉs rellêÊl ilclôb¿r

Students & Teachers: Hamilton County, Atl Schools Teachers

3,107

Orer.ll

187

L¡te¡¡cy

43.53t

l

tiasic

i}{

ðz

uasic

iåd

ú1c

3.8 Hèâd¡¡g

58.7%

ir.oficiÉnl f

fh¿ fsnh¡Mê !"¡ús-Ad.dAæ3s!n\¿ñ¡ Sìi€ieft I:VÁÂ$; iÉ å s!å&ti.d ¿râ;ÞÈ!$i b nêõiûr* ûÀ¡ùFdoliisrdcB. Ëdêol6 sùd ic*tlvs ur Ss æ¿deildc prúlr€s iåtes ri griuir rf !t4Éûk ífùì yês{ùy¿ar ïie l.

S trrrÞo!ìaê: are rúîlcst!âi åsletE !ñM! dtreÈchûcl or#t!leJèlbâséd.il eùlsntп¡íÐfl¡âr.ÈaÌ eiài4yrids *åsBe

ri$cdh!L-

132% $s,752.30;

uu.

Ê¿{lsacriÉd¡vßjlåbl3st¡jer*ÈidërrdeÉ. ford;si¿ee*Ðptê{lêl*!ÉUd¿rrlst¡gãeåfi'2irfå¿¡!irtvi:.lì{ì¿y se woilsble. ti6å écd¿{j {ê ir!.t¡<Jfl¡ tì ihs(Ðr¡Þorinr ih* lilt 8\aiSie rt i¡e àtlíÞ¿ !'¡k,r¡d.inß r,¿¡{J¡ rMi& had tajf gr¡de¡: dd¡ in¡*ded i¡ Srr ccryrqik$ r¡rh yrs

tg¡;!¿?.!¡.{,Fil?.r*üÊ,9i u!-urriiXçiil¡çråvirsixkå::iy4*.1i,liàsi.*ì,}Jrr

fiãÁS Cnnpor,its s¿ rðpnnnd ân o l -í *,11o âad r¿ ine-yeô¡ 6rerñs. i-ev.k * Fd 5 irCicâ¡r lhã: : d¡r,rir; rtr ehnal iç rr¿Çðdngih3 âÞÊtrd !rsh. i.ry¿|3 indìc6hsüiâlb¿y ãrn ñôbnc shùur&r 3Fr*.¡¡d Ë¡G, ¿¡di.¿vðl I *d ? h i¡c¡td$ÂÌfrcy sÉ h¿hnç lsæ b3n ths ¿e€ctsd SôÉ. lh¿ (Ìvåid ivê-ls iúÞrpoÉúo'nr;üdr! Âll ar'úilÂUl. dålâfûr ftè r:, is-4T{gi s¿!8ft€ni âñd ¡!n åf èÈ¡{¿able;¿Åp å* ECC tô5?. h¿ iì.rÂAS U!¿rcq* iompr¡ib bd¡¿¿å ôll l¡r ¿.å3t{H*U lè5ß s!¿l*drd ùr fr! OvèiÊll :'/qS Con}ùsne. I ¡3 ìtâÂ5 N!¡y!è¡â¿f Crrydé hd!àr d nunefêiylo4êðd tgsþ;nCr&i ir ih8 &rr* !\JÁAS CilyÐcdþ. Ihå Il'*S Llpiåry änd tJeilérer:qrD6fe ñiuC6 sll þ3tt tì¡ucr! il $o L!üß$ tâ¡y'pd;¡3 üìdihe ílur¡.rù.+.oÌrD.6jtn. Mnrr dotüliaÍiVAÂS arì¡ çr¡ b?r¡r/cf oû ihè piil,r Y$^s s¡l€ r¡il*6-r'i:r.9jÈtì.gisj:ìLlßl!st!:.r.h{l:ji.

Advanced

Average ACT Composite: Hamitton County,

All Schools

3-8 $pc¡al

Sludilt

'19.0

Cornposite

Liñgu¡ge ã.¡ên.è

Irttrlte

Lltê6cy ånd

¡r?ih

3-8

Bhck o. Àfrican r\mer¡cûn

I

4.5t

'

Achievement: Hamilton County, Àll Schools 3-8

Hispan;c or Latino

lg

NsmerâÊy

1,9.{2

Studanls ì,ì'¡th Ðlsàbit¡t¡gs Perc6nt Per-Pupil fxpenditure

% gelÐ\{

f¡i

eÞ.ôllmsnl dsta

Adm¡nlstratörg Students Engl¡sh Learner Student Percent ËrÕnomically DisadvantâgÊd Studsnl Pêrêent Students w¡th D¡sabilit¡es

Ameri*n i Alaskðo

auio"

TVAAS Composites: Hamilton County, All Schools

Fnglkh Le¡morStudents

I

t

Nal¡v6

I

c.ô 4.0

8.û

12.0 16.ù 20.0 24.6 2â.9

32.0 3ri.C

lt å rìålie¡al rolle$c adrRirsiûni exs'¡ {hat in.Judes subjeit let/el te6ìs ii !.F0iich, Mãlh. fìesd:n! ard Sciènæ. 3t{ce[ir receive sccrês ihat renge Lom I t6 36 ci eÃch sxbject úù.j añ ovèrall Ccmpgsiie sccæ. Àll Te[rËs3êô Éluderi6 ðrc r€qu¡reC to iakê ihe A.CT ¡ô l'1th gr¡d€,

.Á.CT

Algebra I Algebra l¡ Êio¡ogy I

Frglirh, Frglish

Graduation Rate: Hamitton County, All Schools

1l

€sglish lll

Â.ll

US H¡story

r.0

!0.0

iôrô6s6eê ûornpreh¿ns¡ve ,A¡ses$msrìt Prôgrên, ðï

49.ú

60.0

80.0

100.0

Schools

E2.6%

The Grrduåt¡cn R¿te æeâsues liìe percenfagÉ ot studerts lvho gr¡dualed Íonr high sclool arilh¡r lorr y??rr åìC a surlrìrr !'ut ûfrìoêe s¡udeo(9 tlrat erterod the tkrth ç,"de lailr yeârs rsd¡or.

s sef ot st?lewirjs åss*Ê,rìérls 0ive¡ ir Js¡ôôssêe lo neasrire shrienls'skiils ånC prcgrees. lìli¡ëenis ,n grader 3-t tâke thc Àchley{¡mentiesl, ã¡d hìãh schoÕl sluCeÊi$ lGkÊ Ê.nC ot Cour$n ôíäôls lnr v?rioilô 3ub¡eclt. Sti! 'lsnt Esrlls 9ß calagoú¿ed as b€ícw bae¡c, bas¡g prafiì*nt or êdvônced. Stüdens thãt ae Þrcficient or advånced eæ cofimonry considBßd to be al cr 6bov€ gfôde lÞvê|. Subjec:s sith fewerthan '10 vôlid lesls andler glb:ects with ai l€¿sl 99 peEert oi le6s tlìai 1 perceit gf student3 scgii¡g ìú ðry one prcfe¡s¡ry Èategory a¡€ suppressðd ¡r accorú'¿rG with feder¡l p,ivâcy laì{s.

Thê

TCÂ.P. is

148

Profile School Yeår

D¡€trlct Nåño

School Nãme

20't3-2014

Bradlêy County

All Schools

Bradtey County, All Schools

Student Ethnicity: Bradley County, All Schools Eduealion Commissionèr

Mr, Kevhì Huflmân .gfadley County

Ðlstrlct N6mo Dlstrlct D¡rector; O]ßt¡íct €radss S¿rvâd Distr¡cì Addre$s

I

Dktrtgt C¡ty, ST ZlP Safe School Schools

I'i Näl¡ve Ameri$n / Alåskâû I esian : Black orÂti'Ìcân AmeícÊn I Hispanic or Latirro I ltrrire

117 I 1.0%

Johnny McÐaniel:

FK12: 80g South Lee HWi

:

Clsveland, TN 37311 All Schools Safa

i

i

18:

9,561

/

Valu*s rÊllsËt tldcbôr I enrôllne¡i Cala

Students & Teachers: Bradley County, All Schools

TVÀAS Composites: Bradley County, All Schoots

Tèåthers Admlntstralors Studeilts Engll6h Le¡mor8¡rdênts' English Learncr StudÊnt Fercent

Ëconomicrlly Ot3âdvãnlågûd Slqdanl psrcont Students with Dísab¡l¡tles Studonte wlth Disabillt¡Ê3 P6.cËnt PêþPupil Fxpênd¡ture

|

%tselowbasrc

f voÐas'c g

651

Clvêr¡tl

30

Lrtsråcy

'10,455

Lltêrãcy ând lïcmèrâêy

,

l

55.2%

:

t.ttzi 1't.2Yo

$8,4ô6.Sû:

:

*fcdæl ef

s¿orca l¡rd

ii&i.r:,p,ir*:,*1¿,*çtr,!ì,-u..r.r.i¡!d¡$!¡iii.$r.r1är:ibx{¡f$ii:r.1ååçi¡¿lir*,iìbr

%Prol¡c¡ont J%ndvancod

Average ÁCT Composite: Bradley County, Alt Schoots

Mcll!

Cornposite

3-B

StierÞe

Sludi!¡

18.9

c.0 4.ü 8.0 12.0 16.ù ?0.î 21.9 28.0

3-¡ l,ìead¡ng L¡ngu.ge

3-8 See¡¡l

ån¿lyri; ls¿d þ nêÂ4¡û ûâ ¡ñtpåcl ût dSi4q *JdeoB itcrì y6s{}yeBr. I!ìe I''SS ûorrÞosilfs

âB!6i yðù{Ì ú l¡e gì6) or Wr! level beÈÉd s! suúcnt }s!lünar.è d s6Éçid€ {s8ss+ tþñii dè* dl terilau{ Èrbfùúed ifs!¡eà. f ff ds¡ú* or¡1 ùflÊd l+ r¿å! suòr* ¿ g*d¿B K'2 ir }ès! iì råth ihsy *e Ðvdld)b.ùìôs scores {. ¡*Cori8din lhB.iipss¡lÐ lh, file ny¡ìli¡ì,iê d lirs Olr{¿ lrik :?!d,(:ls eix¡ $B!¡* hôd ?*iy gr!,eå da& indiaied û ü!¿,. cíqrdrõ ã¡{h yåd

ils*d ¡cß ae

TVÅÂfi 0împîdbs *ê rðp¿nßd $ d !-5 ri¡la *d ,r,r rñ¿ratr *m¡. Lô!ê16 ¿ ûd 5 iddíc¡ir rrâ! ¿ {dnd n rrhnôl k dûçsdhg ìh¿ âxFricd SM. i.r:d 3 indÊãtã*âtñs1ãe htrliñg 3hòut öê ryèc!çi f.b6, *d i.rvek I Èd: ¡nd:i¿tu firlrÀ?y dr ñnhgls^ ft¡n Lha exlarrßd gMì. Th3 (kdpll TVÂÅS üúryñtu ¡n*rdã dl sôllâble dãls tr¿m t1â K-2 iS¡.T"tCl âs%sùenl sdù¡n ¡ll çJiceblè TCÂP enc ÊôûÌ6&. thó iVAA$ llûÊ+ iômlrsìÞ ¡ndrC¿s dl n^ .rq-_ílußec !€rls irdñcú il lÈ ò.ssÍ iV&9 gonsÈitç. t he :-VÂÂS NurxB¡â¿: C.rEd. itrûlsder eI iluú*ieyfú4€èd tesè lndudìi ¡n lhë tt¿.âll ¡-VÂÂS Con¡psilÈ. ihe TVS$ L¡isre¿y år* ilorÞr#/ rjcrDo$ls dudùs d lê* û¡èNdrd ùrlr Llrr:¿y Car0odrs ed ihe l{okrrrx!¿dneo*r. Ë¿ru drrÊi¿dTVÀqS dÍac¡n båú6vci !n in, Ítbtr rv¡. s sil€ (hl!Þ's:li¿*{*.!$,gHL'j|ft !ii9nf,}ltill.

Achievement: Bradley County All Schools 3-8

Numenêy

f65

Aof rt ð ¡åtio¡ål colle{e admis$ions exfin ihat inr,¡sCeô sublscl level le6is i4 h.n{liêh, Malh, fìoôdilU ð¡d Scierce. Slildeni! recdve lecres ihal range f.om t to 36 on cåch s{bjÊct an.l an orrÉll C6ñ poôite sccre. Âli iennessee Éludenis are rëq(¡red lo kkê thå ACl in I 1th gnde,

Algobr¡ I Algêbn ll Þiology I

Fnglirh I

Graduation Råte: Bradtey County All Schools

English ll Fnglish ¡ll US

Alt schools

¡l¡story

û.0

20.0

40.0

80.0

30_ú

100.0

lho

Gmduet¡on Râte feâslrss thå porcenlaçÉ ol ¡trdents wlìo gråduateC lronl ¡igh r.lìo¡l {ilhirt four yrs,ï årlC ç sümtrBí !'ut Ðfllì!'99 $Ìude!ìir Lhat enl.orsd iho r¡inli grade IDU¡ycâts cåilis.

Thè Tûnnêså€ð üo,ilprêh6nsivô,qcsså5rTìsrt Prôçrém. ôrTCÁp. is ¿ 361 ûf slslewide åssgssrrel'$ fl;veô iô le.ëÊssee lc neas¡¡ae Etuéerrls'skiils ðnd pÊ$ßrs. Sir¡dent! in imdes 3-¿ lêkÕ the Àchieve'nenl Teôt, ãnd hig¡1 sclìosl slildeFl* l?ke Ênd rt Cosrs¡ ôxâmi Irrvarions 6ubjecls. St¡rdeni ßrulls rß calÊgoízed as below basic, båe¡c, prcl¡cìent oradvdoced, Sludents lhãt ûre p.ofts aiert or advanc€d êre cùmmonly ¡o¡sideÊd to be ût oî above grode levôi. Sub¡eclo with fewêr{ìan JO va¡¡d tes€ and/or 6ub:octs wi{h ci leâÊl 99 l¡sræni or less than 1 perc€rt of 3tudents Ëcoring i[ ãry one profcìerrg €ìegory ðre 6uppr6sscri ¡r âccordatc6 wÌlh loderal pÊvacy laeå-

149

Profile Sehool Year

Districl Nõ$e

Schogl Nãme

2013-2014

Grundy County

All Schools

Student Ethnicity:

Grundy County, All Schools

Grundy County,

All Schools Educalion tommissioner

Kêv¡rì Huflmân

Olitrlct N¡mã

Gruûdy CDunty

District Þ¡rec10r Disttíct Grades Servêd Dìslr¡ct AddresE

t

20

M¡. David Dickerson:

j

PK-,I? 1376 tuìailr ST:

:

D¡stlet Ctty, ST AP Safe Schoofl

Altâûìoûi, TN 37301-9097

&

BhckÛAtricanAmed*n

I

r.iun

fti

Hispan;c or Latinc

I

u,trir"

All Schools Sale:

I

Schools

2,245 VâluÊs

Students & Teachers: Grundy County, All Schools

ßlle.l Cc:ôbê.

1

t98. ên.ollfieñl r¡åt¿

TVAAS Composites: Grundy County, All Schools

Teâchers:

Ow¡¡ll

Adm¡r¡tstrâtors

Studeilts

lO.9o/o

Liler.cy

2.275:

i

Ecooomloally DlBadvånt¡god Stud*nt Prrcsnt Students with Þísâbíl¡t¡es St¡rdenlõ wlth Dlsâbil¡tlês Psrcer¡t

8l,8ri6

Pêr-Fupil Expênd¡ture

$s,279.70

Âlume¡¡cy

Litêr¡cy ånd Nuhera6y

19.996 i

Ìh¡ fcùêssen VâL¡e-ÁCla¡ Ás:¡s¡ì¿nt SÌ€iø'! ñVÁAgj is ¿ da&ìAêl ,¡4yß rsr¿ tc ¡n¿äura lho iryã.! ¿l diâùrÈ, cd!o'6 eod Ì*ådi¿rs 1r !h€ aiêrsink prùSë* iôÌ!â ol 6&çs of$tvCcos L¡ìr yed{}!eâr. lþe l'r'S$ t!r+!s{ss l¡sld h3rs ae â¿or$ t*: å:!6s *¡s¡ù Bt trc rshacl Ðr ûrltllsvel bâBcd si ßtudsrl ryrior¡ärìcc u1 6tâi¿y¿lde **By F*itså¿r¿ú{dlàyå¡l*lss!!je.rio¡d*re¡*. *re *,ôilåblc,

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150

IN THE CHANCERY COURT FOR DAVIDSON COUNTY, TENNESSEE

HAMILTON COUNTY BOARD OF EDUCATION et al.,

) ) )

Plaintiffs, V

WILLIAM HASLAM, et al.,

)

) ) ) )

NO. 15-355-l

)

Defendants.

)

PLAINTIFFS' RESPONSE TO THE DEFENDANTS' MOTION TO DISMISS NOW COME the Plaintiffs, by and through counsel, and, for response to the

Defendants' Motion to Dismiss, would show this Court that it has subject matter jurisdiction over each of the Plaintiffs' claims and that the Plaintiffs have stated claims for which relief may be granted. Accordingly, the Defendants' Motion should be denied. ยกNTRODUCTION

Seven local boards of education have filed this action for themselves and on behalf of their teachers and students seeking declaratory and injunctive relief from the

State's persistent failure to comply with its constitutional mandate to establish a system of free public schools for all Tennesseans.l While the State's Basic Education Program

(BEP) might well have complied with the Supreme Court's directives in the Small Schools cases, Tennessee Small School Svstems v. McWherter et al., 851 S.W.2d 139 (Tenn. 1993) (hereafter, Small Schools l), Tennessee Small School Svstems v.

McWherter et al., 894 S.W.2d 734 (Tenn. 1995) (hereafter, Small Schools ll) and t

The Defendants correctly note that no individual plaintiffs have joined this action. lt is generally accepted, of course, that local boards of education have standing to assert claims on behalf of students to whom they owe a duty where a defendant's action impairs the performance of that duty. See Board of Educ. of Shelby County. Tenn. v. Memphis Citv Bd. of Educ., No. I 1-2101, 2011 WL 3444059 at.20-21 (W.D. Tenn. Aug. B, 2011) (a copy of which is attached to this Response as Exhibit 1).

151

Tennessee Small School Systems v. McWherter et al., 91 S.W.3d 232 (Tenn. 2002) (hereafter, Small Schools lll), the General Assembly has failed to implement the BEP. Moreover, the State has imposed upon local boards of education a series of unfunded mandates that have only exacerbated their funding problem. Consequently, none of the

Plaintiffs have sufficient funds to operate their school systems, resulting in constitutionally

im

permissible inequities among commu nities.

ln response, the State argues in part that the courts lack jurisdiction over what is, in the State's view, a political question. Representative Glen Casada, the Republican

House Caucus Leader, perhaps best captured this sentiment when he stated that the

GeneralAssembly is the supreme authority in the State, standing "above and beyond the judiciary and the executive."2'3 While the legislature certainly has broad discretion

in how to comply with its constitutional obligations, it has no discretion whether to comply with these obligations. Thus, this case ultimately turns upon the question of

whether the Constitution, as interpreted by the Supreme Court, is binding upon the General Assembly.

STATEMENT OF THE CASE On March 24,2015, the Plaintiffs filed this action pursuant to T.C.A. S 29-14-101

et seq., the Tennessee Declaratory Judgments Act. The Plaintiffs contend that the Defendants have failed to account for the true cost of Tennessee's system of public education and that, as a result, they have violated the education clause of the 2

Associated Press. "Too Much Mr. Nice Guy? Haslam Struggles to Exert lnfluence." Chattanooga TimesFree Press. April30, 2015. May 30, 2015.

http://www.timesfreepress.com/news/local/story/2015laprl3)ltoo-much-mr-nice-guy-haslam-strugglesexert-influen cel3017 1 6l t R"p. Casada is not alone. lndeed, the entire General Assembly has retaliated against these Plaintiffs in response to their having brought this action. ln Public Chapter 425, a copy of which is attached as Exhibit 2 to this Response, the State purports to prevent the Plaintiffs from prosecuting this action and to make the Plaintiffs financially responsible for the State's cost of defense.

2 152

Constitution, Article Xl, Section 12, and the equal protection clauses of the Constitution,

Article l, Section 8, and Article Xl, Section

8. The Plaintiffs

also contend that the State

has even violated its own laws governing the operation of Tennessee's system of public

education, T.C.A.

S 49-1

-102(a), by failing to fund the BEP, which is the method the

State has chosen to comply with the Supreme Court's constitutional directives. Finally, the Plaintiffs have asserted that the State has violated the prohibition in Article ll, Section 24 of the Constitution against unfunded mandates by imposing additional costs on local boards of education when the State has yet to provide for the current cost of education.

On April 23,2015, the State filed a Motion to Dismiss pursuant to Rule 12.02(1)

and (6) of the Tennessee Rules of Civil Procedure, contending that this Court lacks jurisdiction over the Plaintiffs' claims under the education clause and that the Plaintiffs have failed to state a claim for relief under the remaining three causes of action.

STATEMENT OF FACTS

ln 1993, the Supreme Court ruled that the Tennessee Constitution requires the State to establish and maintain a system of free public schools that provides a

substantially equal educational opportunity to all Tennesseans. Notably, the Court found that this constitutional gua rantee is an enforceable standard. Small Schools

I

851 S.W.2d at 151 . The Court also found that a constitutionally adequate system of free public education should not depend upon the fiscal capacity or the political will of local governments. Small Schools l, 851 S.W .2d at 155-56.

Subsequently, in 1995, the Supreme Court found that any system designed to fund public education that does not account for the cost of teachers is constitutionally

flawed. Small Schools ll, 894 S.W.2d at 738. ln 2002, the Court reiterated its earlier 3 153

holdings and underscored that the State must determine the actual costs that local boards of education incur in employing teachers and then takes steps to equalize these

costs across the State. Small Schools lll, 91 S.W.3d at 238. ln the intervening 13 years, however, the State has failed to identify the true cost

of employing teachers and has therefore failed to allocate these costs equitably across the State. lndeed, the annual funding gap of approximately $3,800 per teacher that existed in 2002 has now increased to approximately $10,000 as of November 1 , 2014.

(Plaintiffs' Complaint at fl 12).4 Additionally, the State has failed to account for the cost of two (2) months' health insurance. (Plaintiffs' Complaint at fl 13).s Thus, school

systems around the State have to come up with $Sg+ million per year outside of the BEP formula. (Plaintiffs' Complaint at flfl 12-13).6 Faced with inadequate funding for employing teachers, local boards of education

have had to cope with this funding gap in a variety of ways. ln Grundy County, for instance, the Board of Education has simply failed to pay its teachers an average wage

comparable to what is offered in neighboring counties. (2014 BEP Review Committee Report at p. 123\.7 According to the BEP Review Committee's most recent report,

wages in Grundy County are substantially lower than those in nearby Coffee, Marion, Warren, Franklin and Sequatchie Counties. ln fact, there is a trend in southeastern Tennessee, as well as the entire State, toward greater salary disparity among local Even the State's recent addition of $99.7 million to the salary component of the BEP has had a less significant impact than the State might have hoped simply because, while the State has increased the funding of local boards for salaries, it has simultaneously mandated an increase in teachers' salaries.

Thus, the funding gap remains largely unchanged in most school systems. " Since the filing of the Plaintiffs' Complaint, the State has agreed to fund an additional month of insurance for the State's teachers.

6 Per T.C.A S 49-3-356, local governments are required to pay those portions of the BEP costs that the State does not pay. Thus, the State's use of artificially low numbers also results in local funding bodies providing artifĂ­cially low funding. ' The Review Committee's Report, which is referenced throughout the Plaintiffs' Complaint, is a publicly available document at www.tn.gov/sbe/BEPl2014%20BEPlFINAL,BEP_November_]_2014_Report.pdf

'

.

4 154

boards of education than existed in 2004. (2014 BEP Review Committee Report at pp.

1e-20).

ln Hamilton County, the Board of Education has made the strategic decision to put more money into salaries than the BEP's artificially low allocation. Consequently,

there is that much less money to be spent on instructional materials in the schools.

(Plaintiffs' Complaint atl[ 22).8 As a result, each school's principal is left to fund the costs of the school's instructional program as best as he or she can. (Plaintiffs'

Complaint atll23).

Invariably, schools in Hamilton County rely upon fees or donations in order to

support even the most basic educational program. (Plaintiffs' Complaint at fl 23).

Attached as Exhibit 3 to this Response, please find a list of school fees approved by the Hamilton County Board of Education for the 2014-2015 school year. e As one can readily see, these fees are not designed to support enrichment opportunities but rather basic, fundamental and essential aspects of the education program, e.9., lab materials, art supplies, and other necessary instruction materials. Without these fees, the schools are simply unable to provide essential aspects of a student's education. (Plaintiffs'

Complaint at fl 23).

Interestingly, there is a direct correlation in Hamilton County between the outside

funds a school can collect, the relative wealth of its community, and the educational performance of its students. Attached as Exhibit 4 to this Response, please find

t As an aside, in 1998, Hamilton County Schools provided $l.5 million to its teachers for the purpose of instructional materials, inclusive of the $100 a year teachers received as part of the BEP. ln 2004, because of budget cuts, Hamilton County Schools reduced the amount of money available for instructional supplies to $1 million. That number has remained the same ever since, forcing schools to find ways to provide for the additional funds necessary to operate. ' Much like the district profile reports relied upon by the State, this document is a publicly available document.

5 155

excerpts from the 2014 financial audit of the Hamilton County Schools setting forth their

fundraising, donation and fee revenue.lo On one end of the spectrum, note that Signal Mountain received $204,304 in fees and donations from its students and community.

This high revenue is possible since only 13.7o/o of its students are economically

disadvantaged. (Signal Mountain Middle/High School Profile Report, 2013-14, a copy of which is attached as Exhibit 5).11 Because Signal Mountain Middle/High School has a fully funded educational program, its students have the opportunity to perform very well

academically. According to the school's 2014 profile report card, Signal Mountain's average ACT score was 23.9, and a very high percentage of its students are proficient or advanced on State mandated tests.

On the other end of the spectrum, Howard High School is in an impoverished part of the county. During the 201 3-14 school year, it collected only

$1

6,032 in fees and

donations from its students and the community. This low figure comes as no surprise; according to its 2014 profile report card, a copy of which is attached as Exhibit 6,94.60/0

of its students are economically disadvantaged. With no course fees to support basic instruction, its students have largely done without essential components of the State's curriculum, ĂŞ.g., lab experience for experimentation and data collection in the sciences and use of a variety of media to support art instruction.r2 With a lack of adequate instructional materials to support the teachers, Howard's students have struggled; the average ACT score is only 14, and the majority of its students are less than proficient on

State mandated tests.

t0

This is another publicly available document.

" This is a school-specific profile; it is part of the district-wide profile that the State has referenced. '' While these specific examples are not included within the Plaintiffs' Complaint, they are illustrative the allegations contained within

IlIl24,26

of

and 31.

6 156

While the gulf between Signal Mountain and Howard High School most clearly illustrates the inequities in the present system of education funding in Tennessee, there is a strong correlation throughout the Plaintiffs' districts between a school's ability to collect fees and donations, the relative wealth of its community, and the students' performance on the ACT. (Plaintiffs' Complaint at flfl 24,26 and 31). Attached to this Response as Exhibit 7, please find a summary of information from the State's 2014 profile report cards for each of the community high schools in the Plaintiffs' districts.l3 Note that the only two community high schools whose ACT scores meet or exceed the national average are Signal Mountain and East Hamilton. Simply stated, students in

more affluent communities have to bear the cost of their own education while students in less affluent communities can expect schools to cut "basic services to the detriment of educational opportunities." (Plaintiffs' Complaint at

ffl

23-24).

Exacerbating this problem, however, the State has imposed ever increasing mandates which increase a local board of education's costs without any concomitant

allowance in the BEP formula for how these costs are to be borne. (Plaintiffs' Complaint at 1lĂ? 22, 26,30 and 31). As explained in the Complaint, the two most obvious

examples are the State's mandate of online testing and Response to lntervention (RTl).

For instance, none of the Plaintiff boards of education has sufficient computers to comply with the State's online testing mandate for the 2015-2016 school year.

(Plaintiffs' Complaint

atl[21). At East Hamilton Middle/High School, all but 30 of its

computers are too old to be reliable for testing purposes. To have the number of tt For purpose of this analysis, this chart excludes magnet schools since they are not tied to a particular community. lt is worth noting, however, that, with excellent financial support from fees and community donations, magnet schools like Chattanooga High Center for the Creative Arts actually perform better than one would expect given their students' level of economic disadvantage. Per Exhibit 4, CCA's outside financialsupport is equivalent to Signal Mountain's on a per pupil basis.

7 157

computers recommended by the State for testing purposes, the school will need to purchase approximately 252 computers, resulting in a cost to the school of

approximately $107,100. ln order to comply with the State's mandate, the school must either raise these funds and buy these computers or move career and technical education (CTE) students from their computer labs for the several weeks it will take to complete the testing. Moving these students, however, would violate State

requirements that they receive a minimum of 180 hours of computer training and instruction.la Of course, East Hamilton Middle/High School's plight is not unique. Schools in each of the Plaintiffs' districts are faced with the impossible choice of charging students'

fees simply so they can purchase enough computers to comply with State mandates; diverting still more funds from basic instruction in order to comply with the State mandates; moving students taking computer-based CTE courses out of their classrooms in violation of regulations governing those classes; or failing to comply with State mandates. (Plaintiffs' Complaint at flfl 21-24,26,31). These are not problems that the Plaintiffs' districts created; they are a function of the State having established

requirements that the districts simply cannot meet.

Local boards of education are also struggling to comply with pedagogical directives such as RTl. ln Hamilton County, the school system spends between

$300,000 and $360,000 a year in copy costs to conduct benchmark testing in support of RTl, and schools hire additional staff to provide intervention. ln Grundy County, where

to

This example is also outside the scope of the Plaintiffs' Complaint. lt does, however, illustrate the allegations set forth inllll2l-22. While it would be impossible to compile an exhaustive list of drastic measures school officials have taken to address the chronic underfunding of education, if the Court deems it appropriate prior to the commencement of discovery, the Plaintiffs will amend their Complaint to set forth additional examples.

I 158

the central office cannot supply sufficient copies to the schools, each school is required

to pay an online access fee of $2,500 in support of benchmark testing. The State has made no provision whatsoever for how these costs are to be borne, burdening large and small districts alike.l5 ln summary, largely because the State has failed to fund the true cost of employing teachers across the State of Tennessee, local boards of education have had

to divert funds from instructional purposes in order to pay their teachers appropriate

wages. This underfunding of teachers, coupled with various unfunded mandates, has resulted in a system in which a quality education in Tennessee is no longer free and constitutionally impermissible inequities have become accepted as the norm.

STANDARD OF REVIEW Rule 8.01 of the Tennessee Rules of Civil Procedure establishes the standard governing the sufficiency of a plaintiff's complaint in the courts of Tennessee. This Rule

provides in material part that a complaint "shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks." Tenn. R. Civ. P. 8.01.

Notably, Tennessee expressly rejected the heightened pleadings standard

embraced by the federal courts in BellAtlantic Corp. v. Twomblv, 555 U.S. 544 (2007) and Ashcroft v. lqbal, 556 U.S. 662 (2009) in Webb v. National Area Habitat for

Humanitv. lnc. ,346 S.W.3d 422,430 (Tenn. 2011). The Supreme Court noted that the "fact-weighing and merits-based determination aspect of the Twombly/lqbal standard is at odds with the well-established principle in Tennessee that a Rule 12.02(6) motion

tu

Once again, these specific examples are outside the scope of the Plaintiffs' Complaint yet they illustrate the allegations set forth in 111121-24, 26, 31.

9 159

challenges only the legal sufficiency of the complaint, not the strength of the plaintiff's proof or evidence." ld., 346 S.W.3d at 432.

The Supreme Court's standard in Webb applies to the Defendants' motions under both Rule 12.01, which challenges the Court's subject matter jurisdiction, and 12.02(6), which challenges the legal sufficiency of the Complaint. The Defendants have made a "facial attack" on this Court's subject matter jurisdiction, an attack that is "quite similar to the method of deciding motions to dismiss for failure to state a claim for which relief can be granted." Midwestern Gas Transmission Comoanv v. Green, No. M2005-

00796-COA-R3-CV, 2006 WL 464115 at *12 (Tenn. App., Feb.24,2006) (a copy of which is attached to this Response as Exhibit R\ In determining whether it has subject matter jurisdiction, a court must review the

complaint and ascertain whether the plaintiff has pled facts sufficient to invoke the court's jurisdiction. Midwestern Gas Transmission Company

at"11. "A court derives

its

subject matter jurisdiction, either explicitly or by necessary implication, from the Constitution of Tennessee or from leg islative acts. Meiqhan v. U.S. Sprint Communications Company, 924 S.W.2d 632,639 (Tenn. 1996). A court must therefore determine "whether the Constitution of Tennessee, the General Assembly, or the common law have conferred on it the power to adjudicate cases of that sort."

Midwestern Gas Transmission Companv at"11.

As applied to a motion to dismiss under Rule 12.02(6), "a complaint'need not contain detailed allegations of all the facts giving rise to the claim,' but it 'must contain sufficient factual allegations to articulate a claim for relief."' WeÞÞ, 364 S.W.3d at 427 (quoting Abshure,325 S.W.3d at 103-104). The Supreme Court noted

10 160

Under Tennessee Rule of Civil Procedure 8, Tennessee follows a liberal notice pleading standard, which recognizes that the primary purpose of pleadings is to provide notice of the issues presented to the opposing party and court.... Our state's notice pleading regime is firmly established and longstanding; this Court recognized well before the Tennessee Rules of Civil Procedure were adopted that "[t]he object and purpose of any pleading is to give notice of the nature of the wrongs and injuries complained of with reasonable certainty, and notice of the defenses that will be interposed, and to acquaint the court with the real issues to be tried."

Webb, 346 S.W.3d at 426-27 (internal citations omitted). Ultimately, "courts should grant a motion to dismiss only when it appears that the plaintiff can prove no sef of facts

insupportoftheclaimthatwouldentitletheplaintifftorelief'''@ Laboratories, 78 S.W.3d 852,857 (Tenn

. 2002) (emphasis

added).

ARGUMENT OF LAW The Plaintiffs' Complaint sets forth short, plain statements that establish both this Court's jurisdiction over the subject matter of this case and provide the Defendants with

ample notice as to the nature of the Plaintiffs' claims. To the extent that the Defendants feel hampered by the Complaint's purportedly "meager" allegations, the appropriate remedy is a motion for a more definite statement pursuant to Rule 12.05 or contention interrogatories pursuant to Rule 33. Because the Complaint properly invokes this Court's jurisdiction and provides a short, plain statement supporting the claims for relief,

this Court should deny the Defendants' Motions.

l.

This Court Has Subiect Matter Jurisdiction Pursuant to the Statutorv Law and the Common Law of This State.

The Defendants assert that this Court lacks subject matter jurisdiction over the

Complaint and specifically lacks the jurisdiction to grant the Plaintiffs' requested relief. ln support of this argument, the Defendants narrowly characterize the nature of the 11 161

Plaintiffs' claims in order to overlook both the full measure of the relief the Plaintiffs seek and the law governing this case.

A.

The Nature of the Plaintiffs' Glaims.

The Plaintiffs contend that the State has violated the education clause of the Tennessee Constitution by failing to provide a system of free public education; that the State has failed to establish a system of free public education that provides substantially equal educational opportunities across the State; that the State has failed to follow the laws that it enacted to meet its constitutional responsibilities; and that the State has imposed a series of unfunded mandates upon local boards of education. Based upon

these allegations, the Plaintiffs have asked this Court for declaratory and injunctive relief.

Contrary to the Defendants' assertion, the Plaintiffs do not ask this Court or the

BEP Review Committee to assume any supra legislative role. To the contrary, the Plaintiffs simply ask this Court to declare the Plaintiffs' rights and the Defendants'

responsibilities under various provisions of the Constitution. Additionally, the Plaintiffs ask this Court to direct the Defendants to submit themselves to the Constitution of this

State and to take steps designed to implement its provisions. Both the statutory law and the common law of this State give this Court the authority to grant this relief.

ln response, the Defendants would point to the Plaintiffs' third prayer for relief, which asks: That this court, recognizing that the General Assembly is violating the fundamental right of Tennesseans to enjoy a free public education, and that the present system of financing fails to guarantee substantially equally educational opportunities across the State, direct the General Assembly to appropriate sufficient funds to implement the

12 162

recommendations of the BEP Review Committee dated November 1,2014, with all deliberate speed;

Plaintiffs' Complaint at p. 15, 113.

The Defendants would contend that this Court lacks the authority to direct the GeneralAssembly to take any particular action. ln making this argument, however, the Defendants misunderstand the nature of the BEP Review Committee and this prayer for relief.

Contrary to the Defendants' assertions, the BEP Review Committee is more than an advisory body that makes recommendations to the General Assembly; it is an essential component in the mechanism that the General Assembly itself developed in order to comply with the Supreme Court's directives in Small Schools ll and

lll.

As the

Tennessee Attorney General once explained:

With respect to funding, the aspects of the BEP which the Court has described as 'essential' are: that the level of education funding is cosf driven, that it contains an equalization formula which favors those systems in greater need of additional resources, that full funding of the BEP will be provided by fiscal year 1997-98, and that prior to that time funds will be made available to systems on an equalizing basis.

Tenn. Atty. Gen. Op. No. 95-029

at.3

(1995) (emphasis added).

Subsequently, the Attorney General underscored the need to equalize teachers' pay.

The lSmall Schools case] came back to the Court when the Small School Systems challenged the State's method of equalizing teacher pay. The court agreed with the Small School Systems. lt ruled that the State's method of equalizing teacher pay was unconstitutionally defective because it contained no mechanism for cost determination or annual cost review of teachers' salaries, unlike the BEP approved in Small Schools 11.... The Court, in essence, directed the State to scrap the Teacher Pay Equity Plan then 13 163

in effect and to equalize teacher pay through the BEP itself, thus assuring that teacher pay would be equalized 'according to the BEP formula...'

Tenn. Atty. Gen. Op. No. 07-90 at.2 (2007) (internal citations omitted) (emphasis added).

Thus, while the General Assembly could have fashioned any number of remedies designed to address the constitutional defects recognized in Small Schools l, it chose

the Basic Education Program and the BEP Review Committee as the means of identifying and equalizing the cost of providing a system of public education across the

State, and the Supreme Court and the Attorney General ratified that decision.

Subsequently, as the Attorney General acknowledges, the Supreme Court directed the State to incorporate the cost of employing teachers into the BEP and to equalize these costs through the work of the BEP Review Committee. As explained in the Plaintiffs'

Complaint, however, the State has failed to take the final step toward funding the BEP Review Committee's recommendations.

Having selected the BEP and its Review Committee as the means whereby it will comply with the Supreme Court's directives, the State may not now be heard to complain that it should not have to implement the BEP Review Committee's

recommendations. This argument is unassailable with regard to the State's failure to fund the true cost of employing teachers, since that was the Supreme Court's directive in Small Schools lll, but it applies with equalforce to the other essential components of

operating a school system that the BEP Review Committee has identified.

The Defendants also misunderstand the Plaintiff's reference to schoolfees, donations, and fundraising activities. The Plaintiffs do not assert that the State has violated the Constitution by allowing schools to collect these outside revenues. To the 14 164

contrary, the Plaintiffs contend that the State has violated the Constitution by creating a system of underfunding such that, Ă­n order to comply with the State's standards, local boards of education must either collect these fees and donations or do without basic

services. Simply stated, a system of education that depends upon outside funding is not free.

Consequently, the gravamen of the Plaintiffs' Complaint is that the State has

breached its constitutional duty to provide Tennesseans with a system of free public education and that its efforts to date have resulted in substantially unequal educational opportunities and a series of unfunded mandates. While the State has developed a funding mechanism that, if fully implemented, would address many of these constitutional defects, the State has persistently failed to implement its own laws, thus leaving its constitutional duties unfulfilled.

The Plaintiffs, therefore, simply ask this Court to find and declare the parties' rights and responsibilities under the Constitution and to direct the State to implement its

own remedy.

B.

The Declaratory Judgment's Act, T.C.A. S 29-f 4-f 01 ef seg., Gives This Court Jurisdiction Over the Subject Matter of This Gase.

The Tennessee GeneralAssembly has unequivocally conferred subject matter

jurisdiction on this Court as part of the Declaratory Judgments Act. T.C.A.

S

29-14-

102(a) provides that "courts of record within their respective jurisdictions have the power

to declare rights, status, and other legal relations whether or not further relief is or could be claimed."

Both this Court and the Supreme Court have already heard similar claims against

the State. Small Schools l, 851 S.W.2d at 141 (Tenn. 1993) ("the complaint seeks a

15 165

declaratory judgment that the funding statutes are unconstitutional, that the defendants be enjoined from acting pursuant to those statutes, and that the state be required to

formulate and establish a funding system that meets constitutional standards"). Much as the plaintiffs in Small Schools I asked the courts to find and declare that the State's

then-existing system of funding education was unconstitutional, so too the Plaintiffs in this matter ask the Court to find and declare that the State's present failure to fund the cost of education is unconstitutional.

The Defendants might contend that the State's sovereign immunity, codified in material part at T.C.A. S 20-13-102, prohibits this Court from considering this matter irrespective of the Declaratory Judgments Act. This statute provides: No court in the State shall have any power, jurisdiction or authority to entertain any suit against the State, or against any officer of the State acting by authority of the State, with a view to reach this State, its treasury, funds or property, and all such suits shall be dismissed as to the State or such officers, on motion, plea or demurrer of the law, officer of the State, or counsel employed for the State.

T.c.A.

S 20-13-102(a).

The flaw in this argument, however, is that sovereign immunity does not apply "to

a declaratory judgment action challenging the constitutionality of a State action." See Colonial Pioe Line Company v. Morqan,263 S.W.3d 827,853 (Tenn. 2008).

Additionally, the Plaintiffs in this action are not seeking to recover monetary damages from the State but rather are asking that the State be compelled to implement a constitutional remedy that it developed to comply with the Supreme Court's earlier

decisions. Having thus exercised its discretion in the development of a remedy, the State may not now be heard to complain that its own remedy is inappropriate or that it should not be compelled to implement its own solution.

16 166

Because the Plaintiffs have asked this Court to find and declare their rights and

the State's responsibilities under the Constitution with regard to the support of a system of free public schools, and because the Declaratory Judgements Act gives this Court

authority to make determinations such as this, this Court necessarily has jurisdiction over the subject matter of the Plaintiffs' Complaint. The Defendants' motion, therefore, must be denied.

C.

Tennessee's Common Law Gives This Gourt Jurisdiction.

Even in the absence of express statutory authority conferring jurisdiction on this Court, Tennessee's common law unequivocally gives this Court the power to protect the

Constitution of this State. As the Supreme Court noted in Small Schools

l,

it is our duty to consider the question of whether the legislature, in establishing the educational funding system, has 'disregarded, transgressed and defeated, either directly or indirectly,' the provisions of the Tennessee Constitution.

As the Kentucky Supreme Court observed recently in response to the same argument, '[t]o avoid deciding the case because of legislative discretion, legislative function, etc., would be a denigration of our own constitutional duty.'

Small Schools l, 851 S.W.3d at 148 (Tenn. 1993) (quoting Rose v. Councilfor Better Education. lnc., 790 S.W .2d 186,209 (Ky. 1989)). lndeed, in Small Schools l, ll and lll, the Supreme Court demonstrated an ever increasing tendency to direct the General Assembly to take specific courses of action in

fulfillment of its constitutional duty, culminating in the directive that the General Assembly must identify the cost of employing teachers and equalize these costs across the State. Small School lll, 91 S.W.3d at24O (Tenn. 2002) ("the lack of cost determination and periodic cost review of teachers' salaries is a problem of constitutional dimensions..."). See also Tenn. Atty. Gen. Op. No. 07-90 at *2 ("the

17 167

Court, in essence, directed the State to scrap the teacher pay equity plan then in effect into equalized teacher pay through the BEP itself, thus assuring that teacher pay would be equalized").

The Supreme Court's increasing willingness to press the General Assembly into determining the true cost of education in the State is significant given the Defendants' bald assertion that the Constitution's education clause does not provide for a specific level of education funding. In making this assertion, the Defendants must necessarily

overlook express language used by the Supreme Court to rebut this very argument: Contrary to the Defendants' assertion, this is an enforceable standard for assessing the educational opportunitĂ­es provided in the severaldrsfricfs throughout the State. The Defendants would use the flexibility of means granted by the Constitution to avoid the certainty of responsibility.

Small Schools l, 851 S.W.2d at 151 (emphasis added).

The Court unequivocally held "the certain conclusion is Article Xl, Section 12 of the Tennessee Constitution guarantees to the school children of this State the right to a

free public education."

fu[&@|[,

851 S.W .2d at 151

.

Because of glaring

constitutional inequities that violated the equal protection provisions of the State Constitution, however, the Supreme Court found that "the precise level of education mandated by Article Xl, Section 12, and the extent, if any, to which the system does not comport with the education clause need not be determined at this time." Small School l, 851 S.W.2d at 152 (emphasis added).

Thus, the Supreme Court did not conclude that courts lack the authority to determine "the precise level of education mandated by the Tennessee Constitution." ld.

Quite to the contrary, the Supreme Court spelled out that the education clause

establishes an enforceable standard, necessarily implying that the courts in this Sfafe 18 168

have the authority to enforce

it.

lnstead of probing that question, however, the Court

chose to decide the matter under the equal protections clauses. Even so, it does not

follow that the education clause is aspĂ­rational; the Supreme Court went to great length to explain that it is enforceable. ln the case at bar, the Plaintiffs do not ask this Court to determine the precise level of deduction mandated by the Constitution. lnstead, the Plaintiffs contend that fhe

Sfafe has itself determined the precise level of education that local boards of education are to provide; the State has simply failed to provide for the cost of this education such that it has breached its duty to "provide for the maintenance [and] support.

..

of a system

of free public schools." Article lX, Section 12, Tennessee Constitution. lf the courts of this State did not have jurisdiction to safeguard the fundamental rights that our Framers have embedded into our Constitution, then, indeed, everyone

would be subject to the tyranny or neglect of the majority. Fundamental rights, however, like the right to a free public education set forth in Article Xl, Section 12 of our ConstĂ­tution, are such that it is the plain duty of the Court to hear complaints that they have been impinged. The Defendants' Motion to Dismiss, therefore, must be denied.

The Plaintiffs' Gomplaint States a GIaim for Relief Under the Equal Protection Glauses of the Tennessee Constitution.

The Plaintiffs' Complaint sets forth a short, plain statement explaining how the State has violated the equal protection clauses of the Tennessee Constitution, Article l, Section 8, and Article Xl, Section 8, by having failed to provide substantially equal educational opportunities for students of Tennessee. Because the Plaintiffs' Complaint fairly puts the Defendants on notice of the Plaintiffs' claims for relief, the Defendants' Motion is not well taken and should be denied.

19 169

A.

The Plainlilﾃ行' Prima Facie Case.

ln order to establish a prima facre case under the equal protection clauses of the Tennessee Constitution, the Plaintiffs must show that there is some constitutionally impermissible disparity in the manner in which the State has attempted to meet its obligation of providing a free public education pursuant to Article Xl, Section 12, of the Tennessee Constitution. See Small Schools l, 851 S.W.2d at 153.

The Two Eou al Protections Clauses.

1

To understand the nature of the Plaintiffs' claims, one must have a better understanding of the two equal protection clauses at issue. Article l, Section B provides

that "no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property though by the judgment of his peers or the law of the land." ln Small

Schools l, the Supreme Court explained that Article l, Section B of the Constitution applies "when the object of the Legislature is to subject [citizens] to the burdens of certain disabﾃｭlities, duties, or obligations not imposed upon the community at large."

Small Schools

I

851 S.W.2d at 152 (emphasis added)

On the other hand, Article Xl, Section 8, provides that

the Legislature shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, immunities or exemptions other than such as may be, by the same law extended to any number of the community, who may be able to bring himself within the provisions of such law.

The Court has also explained that Article Xl, Section 8, of the Constitution applies "when the object of the legislature is to confer upon [citizens] certain rights, privileges,

20 170

immunities, or exemptions not enjoyed by the community at large." Small Schools l, 851 S.W.2d at 153 (emphasis added).

2.

The Privileqe of Education and the Burden of Fees.

ln application, the Plaintiffs contend that the State has failed to allocate sufficient funds to Tennessee's system of public education. As a consequence, in order to operate, school systems have had to solicit funds from the community or do without basic programs and necessary instructional materials. While the Defendants contend that the Plaintiffs' Complaint lacks specifĂ­city, the Defendants apparently overlook the most pressing examples: the underfunding of teacher salaries and benefits, the failure

to allocate costs for online testing, and the failure to allocate costs for RTI services, all of which have forced local boards of education to sacrifice essential aspects of their

educational programs.

In Grundy County, for instance, because the State has failed to allocate sufficient

funds for teacher salaries and insurance, teachers earn well below the State average.

Since the Supreme Court found in Small Schools ll and lll that the cost of employing a

teacher is one of the most important aspects of any educational program, it should be unnecessary for the Plaintiffs to explain how the State's underfunding of this component has harmed Grundy County.

ln discovery, the Director of Grundy County Schools would explain that they have a difficult time hiring and retaining high quality teachers. There is an annual exit of

teachers to surrounding school systems, many of which only pay a little more than Grundy County pays. Nevertheless, because Grundy County lacks the fiscal capacity to pull money from other uses, Grundy County teachers are underpaid and will remain so until the State funds this aspect of the educational system in compliance with the 21 171

Supreme Court's directives in Small Schools ll and

lll.

Until then, Grundy County

students, as a matter of law, will continue to suffer diminished educational opportunities.l6

As an interesting contrast, while Hamilton County pays its teachers more than most of the other Plaintiffs, this strategic decision results in inequities within Hamilton County as well. As the Superintendent of Hamilton County Schools would explain in

discovery, because the Hamilton County Board of Education has chosen to make it a priority to hire more teachers than the BEP funds and to pay these teachers a wage to be competitive with northern Georgia, it has less money to purchase instructional supplies for the classroom. At some schools, including Signal Mountain Middle/High

School and East Hamilton Middle/High School, students pay exorbitant fees in order to attend the nominally free public schools. These fees are necessary to provide lab materials, art supplies, and necessary instruction materials that are required to meet the State's guidelines.

At other Hamilton County schools, there is less wealth within the community to charge fees in support of the school's basic education. As a consequence, students do

without lab materials, art supplies, and necessary instructional materials. With fewer educational opportunities resulting from less financial support, students are measurably less competitive than students at Signal Mountain or East Hamilton on State proficiency

tests, score lower on the ACT, and therefore receive a substantially unequal educational opportunity.

tu

This argument applies with equal force to any district in southeastern Tennessee whose teachers earn below the regional average. As explained in the 2014 BEP Review Committee Report, salary disparity in this region has generally increased since 2004; salary disparities state-wide have increased as well. See BEP Review Committee's Annual Report at pp.2O-21.

22 172

3.

Summary.

The State's failure to fund education has the effect of grouping students on the basis of wealth and is fundamentally unfair to all. As a result of the State's

underfunding of education, some students in the Plaintiffs' counties must go without the privilege of a basic education in violation of Article Xl, Section

8.

Other students, in

order to receive these opportunities, are burdened by fees in violation of Article l, Section

8. There is no compelling reason

to justify this disparate treatment, particularly

when the Constitution of this State clearly requires the General Assembly to provide students with a fee public education.

B.

The Flaws in the State's Arguments.

ln support of their Motion to Dismiss, the Defendants contend that the Plaintiffs' Complaint lacks specificity with regard to how the State's underfunding of education has resulted in substantially unequal educational opportunities. The State then points to its data regarding per-pupil expenditures in the Plaintiffs' school systems and asserts that it has apparently resolved the unconstitutional disparities evident in the Small Schools

cases. There are at least three problems with the Defendants' arguments.

1.

The Defendants Want More from the Complaint than Rule 8.01 Requires.

First, to the extent the Defendants argue that the Plaintiffs' Complaint lacks

sufficient examples of inequities, the appropriate remedy is either a motion a more definite statement pursuant to Rule 12.08 or, alternatively, contention interrogatories as part of discovery. Since Rules 8.01 and 12.02(6) merely require notice of the Plaintiffs'

claims, and since the Defendants have fair notice of the inequities in this case, the Defendants' argument is baseless.

23 173

2.

The Defendants Use an lncorrect Standard of Review.

Second, while not germane to their Motion to Dismiss, the Defendants would have this Court conclude that the proper standard of review is the rational basis test.

See Defendants' Memorandum of Law at p. 13. To arrive at this conclusion, however, the Defendants misread the Supreme Court's decision in Small Schools l.

In Small Schools l, the Supreme Court noted that Chancellor Allen High, Davidson County Chancery Court, had found the State's funding scheme

unconstitutional under allthree constitutional standards, reduced scrutiny, heightened scrutiny and strict scrutiny.

ld.

Rather than stating which standard applied, the

Supreme Court observed that "if a system fails to meet the 'rational basis' test, which imposes upon those challenging the constitutionality of the system the greatest burden

of proof, the plaintiffs will be found to prevail and further analysis will not be necessary."

ld. The Supreme Court, which had just held education to be a fundamental right under Tennessee's Constitution, Small Schools l, 851 S.W .2d at 151 , certainly never intended that the State could deprive a Tennessean of this fundamental right based upon some merely rational basis.

lndeed, the law in Tennessee is that any burden to be imposed upon a fundamental right must withstand strict scrutiny

In Planned Parenthood of Middle

Tennessee v. Sundquist , 38 S.W.3d 1 (Tenn. 2000), the Supreme Court considered whether the Tennessee Constitution, as it then read, provided a woman with a fundamental right to an abortion. After concluding that the Constitution granted such a right, the Court stated that "it is well settled that where a fundamental right is at issue, in order for a state regulation which interferes with that right to be upheld, the regulation must withstand strict scrutiny. The State's interest must be sufficiently compelling in 24 174

order to overcome the fundamental nature of the right." Planned Parenthood, 38 S.W.3d at 15.

Accordingly, since the Supreme Court concluded that the education clause of the Tennessee Constitution, Article Xl, Section 12, provides Tennesseans a fundamental right to a free public education, it necessarily follows that any regulation impairing that right is subject to strict scrutiny. While the Court used the rational basis test in Small

Schools l, it did so simply to illustrate that the then existing system of funding Tennessee's public schools was irrational. ln the case at bar, the system, were it fully funded, would likely be rational. The more appropriate question is whether there is any compelling reason for the State to have failed to implement the funding scheme that it developed in response to the Small Schools litigation.

3.

The Defendants Relv on lmm Per-Pupil Expenditures to Conclude That There Are No Lonqer lmpermissible Disparities.

Third, the Defendants point to data from the State profile reports for the Plaintiffs' school systems that the Defendants claim establish that there are no longer funding inequities among the Plaintiffs'school systems. These figures, however, are immaterial

as matters of fact and matters of law.

As matters of fact, these statistics are immaterial because one cannot readily compare per-pupil expenditures from school district to school district. lndeed, the Supreme Court expressly discounted the notion that per-pupil expenditures had to be, or could be, equalized across the State. Small Schools l, 851 S.W.2d at 156.

Fundamentally, a comparison of per-pupil expenditures presupposes that each school district pays for the same types of expenses and has the same economies of scale when, in fact, they do not. As an example, consider the costs associated with

25 175

RTl. ln Grundy County, each school pays the online access fee in order for its students to participate in the online testing while, in Hamilton County, the Board of Education bears this cost. In most of the Plaintiffs' counties, the local boards of education pay for

the purchases of computers necessary for the online testing. ln Hamilton County, the schools pay these costs. Thus, because some local boards of education bear certain costs and other local boards of education push other costs to the schools, one cannot easily compare pupil-to-pupil expenditures and conclude that there are no inequities within each system.

The disparity in size among the Plaintiffs'districts also makes it impossible to

compare per-pupil expenditures. ln Grundy County, for instance, the cost of one superintendent is borne by approximately 2,100 students. ln Hamilton County, the cost of one superintendent is borne by approximately 43,000 students. While the Defendants might argue that Hamilton County students also bear the costs of other

administrators not borne by students in other systems, that is precisely the point; one cannot compare per-pupil expenditures from district to district and thereby assume that each student in each district is receiving a substantially equal educational opportunity.

There are simply too many factual variables to draw this conclusion.

The more significant flaw in the Defendants' argument is that per-pupil expenditures are legally immaterial. ln Small Schools ll and lll, the Supreme Court states clearly that teachers are the most important component in any education system.

The Court then held that the failure to equalize the cost of employing teachers puts the State's BEP funding system at risk practically and legally. Small Schools ll, 894 S.W.2d at 738; Small Schools lll 91 S.W.3d at236-37. The Tennessee Attorney General clearly understands the directives of the Supreme Court and has advised the General 26 176

Assembly of its constitutional duty to provide the cost of teacher salaries within the BEP formula, a formula that presupposes that these costs will be identified and equalized.

Tenn. Atty. Gen. Op. No. 07-90 at*2.

It is thus irrelevant what Grundy County or any other county spends per-pupil vis-

Ă -vis Hamilton County when it is still unable to pay its teachers an appropriate wage.

The 2014 BEP Review Committee Report sets forth irrefutable data that, since the adoption of BEP 2.0, the disparity in teacher salaries among local boards of education

has increased across most of the State and has certainly increased within southeastern Tennessee. The Review Committee's data conclusively demonstrates that salaries for Grundy County's teachers continue to lag behind that of its neighboring counties, resulting in a competitive disadvantage for Grundy County Schools. The Plaintiffs need not elaborate upon the problems associated with underpaid teachers; this issue was

decided in Small Schools ll and lll, and yet the State has stillfailed to implement the remedy it crafted to satisfy the Supreme Court's 2002 decision. The delay is inexcusable.

The per-pupil expenditures are immaterial for a second reason. Because the State has underfunded salaries and benefits for teachers by approximately $0OO million per year, local boards of education have had to make strategic decisions whether to place a greater priority on hiring teachers or upon supplying classrooms. ln Hamilton County, for example, the Board has made the decision to invest in teachers. Because

of its size, it has to hire more teachers than are funded by the BEP, and the Board has

to pay these teachers a higher wage than assumed by the BEP. In making this choice, however, Hamilton County has had to push the cost of operating the schools on to the

27 177

schools themselves, thereby creating substantial unequal educational opportunities within the county.

As explained previously, and as set forth in the Complaint, communities that can afford to bear the cost of instruction materials, such as Signal Mountain and East Hamilton, can have well stocked science labs and art and music classes that satisfy the

State standards. Of course, they can do so only by collecting exorbitant fees from students and large donations from the community.

In other parts of Hamilton County, however, and indeed, across the Plaintiffs'

school systems, if the parents and the community are less able to bear these financial costs, then the quality of the education available in each school suffers. See Exhibit 7.

As explained in the Complaint, schools fees are no longer about augmenting the basic curriculum; the State's funding mechanism has created a situation in which, without these fees, sfudents do without basic educational oppor-tunities. As also explained in

the Complaint, this problem is only going to get worse with the implementation of RTI and on-line testing. Schools will continue to grapple with how to fund mandates the State has imposed without pulling resources from basic education programs.

C.

Summary.

While the State would neatly examine per-pupil expenditures and conclude that, despite having ignored the requirements of Small Schools ll and lll, it has somehow managed to provide substantially equal educational opportunities to all Tennesseans,

the State's profile report cards from the various schools tell a different tale. The State's failure to fund education has pushed the funding burden into the school communities

themselves. The students who can afford to pay necessary fees receive an educational program that complies with State standards whereas students who cannot pay these 28 178

fees do not receive this education. This failure to fund the true cost of education has therefore created substantially unequal educational opportunities for the children in the Plaintiff's school systems and across the State. The Defendants' Motion to Dismiss

must be denied.

lll.

The Plaintiffs Have Established a Prima Facie Gase of the Violation of T.G.A. S 49-1-102(a).

The Plaintiffs contend that the State has failed to follow its own laws with respect

to the funding of education in Tennessee. Because the State has enacted many of

these laws in order to comply with the Constitution, and because adhering to the Constitution is not within the legislature's discretion, the Plaintiffs have stated a valid claim for relief. Accordingly, the Defendants' Motion must be denied.

A.

Understanding T.G.A.

T.C.A.

S

S

49-f -102(al in lts Context.

49-1-102 is the means by which the General Assembly has attempted to

put into effect the provisions of the education clause found in Article Xl, Section 12, of the Tennessee Constitution. Whereas the education clause provides that the General

Assembly "shall establish" a system of free public education, the General Assembly, in obedience to this constitutional requirement, has enacted T.C.A.

S

49-1-102(a) as a

preamble to the rest of its enactments that govern the operation of Tennessee's public

schools. Logically, therefore, one must read T.C.A.

S 49-1 -102(a) in conformity with the

constitutional dictate that the General Assembly "shall provide" for a system of free public schools in this State.

The Supreme Court recognized in Small Schools I that State tax revenues can ebb and flow. Small Schools l, 851 S.W.2d at 151. In view of this economic reality, the 1977 constitutional convention sought to preserve the GeneralAssembly's wide latitude

29 179

in how to fund education but not the certainty that it must fund education.

ld.

Because

the State might face "periods of abundance and periods of scarcity," the Framers required the legislature "to provide for the necessary types of programs across the State that the people need" while preserving the legislature's "free hand in the funding of its

programs." ld.

Of course, while tax revenues might ebb and flow, the Constitution requires that public education must receive top priority over and above other legislative preferences including, for example, higher education. Article Xl, Section 12 of the Constitution expressly establishes this priority; whereas the General Assembly "shall provide" for a

system of free public schools, it also "may establish and support post-secondary educational institutions, including public institutions of higher learning as it determines." ln other words, while it may be desirable for the General Assembly to allocate funds toward higher education, the Constitution plainly requires the General Assembly to meet its obligations to fund the full cost of a system of free public education across the State

before it undertakes to provide for higher education.

Within this constitutionalframework, the General Assembly has preserved for

itself latitude in the event that revenue shortfalls prevent it from funding the BEP fully. ln T.C.A. S 49-3-307(b), the General Assembly has provided that BEP funding is subject

to annual appropriations. As a matter of law, of course, the General Assembly is presumed to exercise its duties in good faith and within constitutional limits. State v.

Thomason ,142Tenn.527,

_,221

S.W. 491, 495 (1920).

Good faith, however, requires that the General Assembly execute its duties

based upon the priorities set forth within the Constitution. lnasmuch as the Constitution mandates a system of free public schools and merely permits a system of higher 30 180

education, it necessarily follows that the General Assembly may not allocate funds to various discretionary expenditures until after it has discharged its duty to fund public

education. The force of this argument applies equally well to other discretionary expenditures such as funding a state museum, the development of a new state logo, and literally every other discretionary expense. lndeed, until the General Assembly has satisfied all of its mandatory funding obligations , it has no discretionary funds to appropriate to other uses.

Accordingly, inasmuch as the GeneralAssembly has failed to allocate funds to cover the true cost of education in this State, e.9., the cost of employing teachers, the

cost of online testing, the cost of RTl, the cost of instructional materials for classrooms, etc., it has failed to meet the Constitution's requirements and has no discretionary funds to spend on other endeavors, however worthwhile they might be. lf this constitutional and fiscal reality seems onerous, the General Assembly is certainly free to ask the

citizens of Tennessee to amend the Constitution to lower the priority our State has placed on education since its earliest days. Until the Constitution is amended, however,

the General Assembly is bound by its terms.

B.

Applying the Provisions of T.C.A.

T.C.A.

S 49-1

S

49-f 402(al.

-102(a) provides that Tennessee's system of public education is

subject to the laws of the General Assembly and the rules and regulations governed by

the State Board of Education. Among these laws is T.C.A.

S

49-3-307, which sets forth

the BEP's funding mechanism. Another such law is T.C.A.

S

49-3-356, which provides

that the State will fund

75o/o

of statewide classroom costs and 50% of statewide non-

classroom costs.

31 181

Of course, as explained in the Plaintiffs' Complaint, the State has failed to implement the very laws that it enacted to address underlying constitutional defects in

funding of public education. Despite the State's obligation to fund 75% the classroom components under T.C.A. SS 49-3-307(a)(2) and 49-3-356, the State has only funded 7Oo/o

of these costs, resulting in a funding shortfall of approximately $134 million.

(Plaintiffs' Complaint at fl 35).

Moreover, the costs are set at an artificially low level. The State has not

adequately adjusted the cost of instructional positions per T.C.A.

S

49-3-307(aX3)

despite the Supreme Court's admonition in Small Schools lll that its funding gap was approximately $3,800 per teacher per year. According to the BEP Review Committee, the funding gap is now approximately $10,000 per teacher per year, resulting in a

funding shortfall of approximately $532 million per year. (Plaintiffs' Complaint atl[ 12).

Additionally, contrary to T.C.A. S 49-3-307(a)(10), the State has underfunded teachers' health insurance by $0多 million. (Plaintiffs'Complaint at'ff 13).

Because the State has failed to follow its own laws, the State has allowed

constitutional violations to persist and has shifted the funding burden onto local boards of education. These local boards of education, in turn, have shifted the funding burden onto the schools and their communities. As a result, students in some communities do

without basic educational services whereas other students have to pay fees for what should be the free public schools.

C.

The Defendants' Erroneous Constructions of the Law.

ln support of their Motion to Dismiss, the Defendants ask this Court to consider particular subsections of the law without considering T.C.A. S 49-1 -102(a) and other

32 182

statutes in context. ln doing so, the Defendants arrive at erroneous constructions of the law and Ă­gnore the overriding constitutional framework.

In particular, the Defendants quibble with the language in Paragraph 35 of the Complaint that the State is required to pay 75% of the classroom costs. The

Defendants point to the exact language of T.C.A. the State is to provide

75o/o

S

49-3-307(a)(2), which provides that

of the costs related to "instructional positions" within the

classroom component, not actually

75o/o of

the classroom costs. Frankly, this argument

strains at gnats while swallowing the camel.

Assuming that the State was only required to pay for 75% of the costs attributable to the instructional positions, the Plaintiffs would have still stated a claim for

relief. As stated in the Complaint, the State is only paying 70% of these costs, resulting in what the BEP Review Committee found to be a $134 million in underfunding.

(Plaintiffs' Complaint at fl 35).

But, in fact, the State is required to pay

75o/o

of the classroom costs. T.C.A. S 49-

3-356 sets forth this obligation explicitly, and both the Supreme Court and the Attorney

General have found the BEP to satisfy the State's constitutional obligations subiecf fo this understanding. See Small Schools ll, 894 S.W.2d at 737; Tenn. Atty. Gen. Op. No.

96-137 at

*1. lndeed, in view of T.C.A. 49-3-356, one can only read T.C.A. S

S

49-3-

307(a)(2) to mean that there is no meaningful difference in context between

"instructional positions" and "the classroom component."

The Defendants also suggest that funding for the BEP is entirely discretionary. ln particular, they point to T.C.A.

S

49-3-307(b), which does state that funding is

dependent upon annual appropriations. This subsection, however, must be interpreted within the constitutional framework of both T.C.A.

SS

49-1-102(a) and 49-3-307(a).

33 183

Neither the Constitution nor the Supreme Court gives the legislature the

discretion whetherto fund education in a manner that complies with constitutional

dictates. Having determined for itself how to identify and equalize the cost of education in this State, the GeneralAssembly has now exercised the full limit of its discretion and

may not now be heard, after 13 years of delay, that it still has discretion whetherto implement a remedy to a constitutional defect it promised to Tennessee so many years ago.

lndeed, given the constitutional context of T.C.A. SS 49-1 -102(a) and 49-3307(a), the Defendants' argument that the State has discretion whetherto fund the full

cost of education is quizzical. Tennessee's Attorney General himself opined that lf the General Assembly chose not to fund the BEP sufficiently, it would eliminate a factor that the Supreme Court considered essential to the BEP's constitutionality.

About the BEP, the Supreme Court said, 'adequate funding is essential...[Each factor] related to funding is an integral part of the plan and... indispensable to its success. [No factorl can be compromised without destroying the integrity and effectiveness of the plan." Small Schools ll, 894 S.W. 2d at738.

Tenn. Atty. Gen. Op. No. 01-112at"2 (2001).

Simply stated, having created the BEP in compliance with its constitutional

obligations, the General Assembly has no discretion whether to fund it so long as it funds any othenvise discretionary expenditure.

D.

Summary.

The Plaintiffs do not contend that this Court should direct how the General Assembly should fund the BEP in order to be in compliance with T.C.A.

S

49-1-102(a)

Once again, that is exclusively a legislative prerogative. lf the General Assembly

chooses to raise taxes, it certainly can. lf the General Assembly chooses to shift 34 184

available funds from discretionary items in the State's budget, such as higher education, a state museum, or the development of a new state logo, it certainly can. Because

Tennessee's Constitution creates a fundamental right for Tennesseans to enjoy a system of free public schools, however, the State has no discretion whether to pay the costs associated with this system of public education.

Likewise, if State officials believe that complying with the State's Constitution is

too onerous, or that the terms of the Constitution are outdated in the 21st century, it certainly has the power to suggest constitutional amendments to the people of this

State. Until such time as the citizens of this State decide that its children are not entitled to a free public education, the General Assembly has no choice but to honor the

terms of our organic law.

A fottiori, the General Assembly has no choice but to implement the terms of

a

statutory scheme that it consciously developed in order to comply with the Constitution.

It so happens that the GeneralAssembly, in submission to the Constitution and the

Supreme Court, enacted the BEP as one of the laws of the State that governs the State's system of public education pursuant to T.C.A. S 49-1-102(a). Were it fully funded, the BEP would likely address most of the funding problems affecting the Plaintiffs and other local boards of education around the State.

Until that time, however, the State's persistent failure to follow its own laws is

arbitrary and capricious, resulting in a breach in the State's duty to provide for a system of free public schools across the State. Accordingly, the Plaintiffs have stated a claim

for relief under T.C.A. S 49-1-102(a). The Defendants' Motion to Dismiss must be denied.

35 185

lV.

The Plaintiffs' Complaint States a Glaim Under Article ll, Section 24, Which Prohibits Unfunded Mandates.

The General Assembly has imposed a series of measures upon local boards of

education without accounting for the costs of these measures. Because the Constitution prohibits unfunded mandates, the Plaintiffs' Complaint states a claim for

relief. Accordingly, the Defendants' Motion to Dismiss should be denied.

The Constitution generally prohibits the General Assembly from imposing unfunded mandates upon local governmental entities without accounting for some portion of the cost. ln particular, Article ll, Section 24 of the Constitution provides that "no law of general application shall impose increased expenditure requirements on

cities or counties unless the General Assembly shall provide that the State share in the

cost." Broadly speaking, because the General Assembly must share some portion of the costs it imposes upon local governments, this provision of the Constitution demands fiscal accountability from the State legislature.

The State, however, has imposed a series of unfunded mandates upon local boards of education without making any allowance for these costs. By way of example,

the Plaintiffs reference the costs of RTI and online testing, both of which directly result in increased costs to local boards of education, and none of which the State has proposed to fund. (Plaintiffs' Complaint atll21).

With regard to RTl, this measure requires local boards of education to spend an increasing amount of instructional time with students in need of interuention. By definition, someone has to provide instruction to these students; boards of education must find ways to provide this instruction without sacrificing instruction being made to

36 186

the rest of the students. Unless the State assumes that teachers will work for free, there is necessarily a direct personnel cost associated with this measure.

Additionally, with regard to online testing, the State has made no provision for these costs either. Schools must pay access fees to participate in these online tests, and schools must provide an adequate number of devices for their students, both of

which are direct costs mandated by the State. The State has done nothing to provide for these new costs that it is imposing on local boards of education.

Of course, RTI and online testing are simply two of the larger examples illustrating the problems referenced in the Plaintiffs'Complaint. lnasmuch as

Tennessee law simply requires the Plaintiffs to set forth a short plain statement in support of their claim and explaining their plea for relief, the Plaintiff's Complaint satisfies the pleading standards of Rule 8.01.

ln response, however, the Defendants would assert that, as a matter of law, the State is not responsible for these unfunded mandates since the State already funds a substantial amount of the costs of educating Tennessee's students. There are at least two significant flaws in this argument.

First, as explained in the Plaintiffs' Complaint, the State is actually undertunding

the cost of education in this state by hundreds of millions of dollars. ln view of the Supreme Court's decisions in Small Schools ll and lll, it is axiomatic that the underfunding of the cost of employing teachers, which the BEP Review Committee

estimates to be $532 million for the cost of salaries and another $64 million for the cost of insurance, standing alone is constitutionally indefensible. While the General Assembly has not incorporated the BEP Review Committee's other recommendation into the BEP formula, it is noteworthy that the BEP Review Committee's task, 37 187

constitutionally speaking, is to identify the true cost of operating Tennessee's system of public schools. lgnoring the Review Committee's recommendation, therefore, is

constitutionally unsound.

Having already underfunded education in this State to the point of creating a

constitutional dilemma, the Defendants cannot fairly state that its additional mandates on local boards of education are already funded. lf the General Assembly had actually determined the costs of implementing RTI and, exercising its legislative prerogative, had chosen to bear only a fraction of the costs, the Plaintiffs would have a weaker claim under this provision of the Constitution. Likewise, if the General Assembly had

determined how many new devices local boards of education would need to purchase, had estimated the cost of these purchases, and had allocated funds accordingly, the Plaintiffs would have a weaker claim under this provision of the Constitution. The State, however, has simply ignored the financial burden that it has created for local governments.

Second, the Defendants rely upon Knox County v. Citv of Knoxville, C.A. No.

736, 1987 WL 31640 (Tenn. App. Dec. 30, 1987) (a copy of which is attached to this Response as Exhibit 9), in support of the notion that the General Assembly does not have to share explicitly in increased costs that its legislation imposes upon local boards

of education. ln fact, this case stands for a different conclusion. ln Knox County, the Court of Appeals considered whether the General Assembly had violated the Constitution by permitting a municipal school board to cease its

operations and requiring the county board of education to hire the city's former teachers with no diminution of their employment benefits. Knox County complained that the

38 188

controlling statute, in application, required the Knox County Board of Education to assume the personnel costs of the City's more expensive employees.

ln rejecting Knox County's argument, the Court first observed that the General Assembly had not required any municipality to cease operations; as a result, any increased expenditures were "too indirect and speculative to trigger the state-share

mechanism of Article ll, Section 24." Knox Countv at *6. The State had simply provided for continuity of teachers' employment in the event that their school system ceased to

operate. ld.

The Court also found that, while the Knox County Board of Education was required to hire the City of Knoxville's teachers, it also received State and local revenue

that had previously gone to fund the Knoxville City School System. Thus, State law had provided for the Knox County Board of Education's increase in costs. ld. ln the case at bar, the State has allocated hundreds of millions of dollars less

than it actually costs to operate Tennessee's public schools. Rather than taking steps to address this chronic underfunding, the State has imposed additional requirements on local boards of education that directly and necessarily increase their costs of operation.

These requirements are both fiscally irresponsible and constitutionally impermissible.

Accordingly, the Plaintiffs' Complaint states a claim under this provision of the Constitution, and this Court should deny the Defendants' Motion to Dismiss.

CONCLUSION This Court should deny the Defendants' Motion to Dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. With regard to the Motion to Dismiss for lack of subject matter jurisdiction, it is plain from the

face of the Plaintiffs' Complaint that this Court has jurisdiction both under the 39 189

Declaratory Judgments Act and the common law of the State of Tennessee. The

Plaintiffs have asked this Court, pursuant to T.C.A. S 29-14-101 et seq., to find and declare their rights vis-Ă -vis the State with respect to certain provisions of the

Tennessee Constitution. The Plaintiffs ask for no more and no less than the relief that our Supreme Court has already promised to the citizens of Tennessee and the local boards of education that represent them.

With regard to the Motion to Dismiss for failure to state claims for relief, the Plaintiffs need only provide the Defendants with a short plain statement setting forth simple facts describing the basis for their claimed relief. The Plaintiffs have in fact done

far more than is required under the law.

Referencing the BEP Review Committee's November 1,2014 report, the

Plaintiffs have described in detail how the GeneralAssembly has underfunded education in the State by hundreds of millions of dollars. The Plaintiffs then explain how this underfunding of education has shifted the financial burden to the local boards of education, individual communities, and even students themselves. Some students are forced to pay fees in order to receive an othenruise free public education whereas other students simply do without the education guaranteed by the State's Constitution. ln the face of this constitutional dilemma, the General Assembly has ignored its own laws that it enacted to address the funding problem and has instead heaped additional costs

upon local boards of education, seemingly unaware of the fiscal crisis that it has created.

While this "short plain statement" would seem to be enough to satisfy the Plaintiffs' burdens under Rule 8.01, the Defendants may certainly ask for a more definite statement if they need additional specificity in order to respond to the Plaintiffs' 40 190

Complaint. Alternatively, they may certainly explore any of these matters through discovery. ln summary, however, the Plaintiffs' Complaint on its face establishes both this Court's jurisdiction and prima facie claims for relief under the education clause, the

equal protection clauses, state law, and the prohibition against unfunded mandates.

Accordingly, the Defendants' Motions should be denied.

Respectfu lly submitted,

LEITNER, WILLIAMS, DOOLEY & NAPOLITAN, PLLC

BY:

açeæ

D. SCOTT BENNETT - TNBPR: 015988 MARY C. DECAMP - TNBPR:027182 Attorneys for Plaintiffs Tallan Building, Suite 500 200 West M.L. King Blvd.

Chattanooga, TN. 37402 Telephone : Ø23) 265-021 4 Telecopie r: (423) 266-5490

CERTIFICATE OF SERVICE l, the undersigned, do hereby certify that a true and e{ggt copy of the foregoing has been hand delivered to all counsel of record on this the/o-' day of 2015.

Herbert H. Slatery Tennessee Attorney General 425 Fafth Avenue North Nashville, TN 37243

By:

D. SCOTT BENNETT - TNBPR: 015988 MARY C. DECAMP - TNBPR:027182

41 191

Notes _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ 192

You Think You Can Take My Cell Phone? How School Adminsitrators May Restrict On/Off Campus Speech

Charles Purcell and Chris Hayden, Attorneys Purcell, Sellers & Craig

193

In The Supreme Court of the United States 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) TINKER, v.

DES MOINES SCHOOL DISTRICT. Summary: A small group of teen-aged students in Des Moines planned to wear black armbands to classes to protest the war in Vietnam. Hearing about the plan, school principals decided to forbid wearing armbands and to suspend students who disobeyed the order. Several students defied the principals' edict and were suspended. Their families sought an injunction from a U.S. district court forbidding the principals and the school district to discipline the children for their symbolic protest. The parents lost in the district court. That decision was affirmed by an equally divided court of appeals. The parents sought and obtained certiorari from the Supreme Court.

In The Supreme Court of the United States 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) NEW JERSEY, v.

T.L.O. Summary: We granted certiorari in this case to examine the appropriate-ness of the exclusionary rule as a remedy for searches carried out in violation of the Fourth Amendment by public school authorities. Our consideration of the proper application of the Fourth Amendment to the public schools, however, has led us to conclude that the search that gave rise to the case now before us did not violate the Fourth Amendment. Accordingly, we here address only the questions of the proper standard for assessing the legality of searches conducted by public school officials and the application of that standard to the facts of this case.

194

In The Supreme Court of the United States No.13–132, June 25, 2013 RILEY, v.

CALIFORNIA Summary: In No. 13–132, petitioner Riley was stopped for a traffic violation, which eventually led to his arrest on weapons charges. An officer searching Riley incident to the arrest seized a cell phone from Riley’s pants pocket. The officer accessed information on the phone and noticed the repeated use of a term associated with a street gang. At the police station two hours later, a detective specializing in gangs further examined the phone’s digital contents. Based in part on photographs and videos that the detective found, the State charged Riley in connection with a shooting that had occurred a few weeks earlier and sought an enhanced sentence based on Riley’s gang membership. Riley moved to suppress all evidence that the police had obtained from his cell phone. The trial court denied the motion, and Riley was convicted. The California Court of Appeal affirmed. In No. 13–212, respondent Wurie was arrested after police observed him participate in an apparent drug sale. At the police station, the officers seized a cell phone from Wurie’s person and noticed that the phone was receiving multiple calls from a source identified as “my house” on its external screen. The officers opened the phone, accessed its call log, determined the number associated with the “my house” label, and traced that number to what they suspected was Wurie’s apartment. They secured a search warrant and found drugs, a firearm and ammunition, and cash in the ensuing search. Wurie was then charged with drug and firearm offenses. He moved to suppress the evidence obtained from the search of the apartment. The District Court denied the motion, and Wurie was convicted. The First Circuit reversed the denial of the motion to suppress and vacated the relevant convictions.

Held: The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.

195

In The United States Court Of Appeals For The Fifth Circuit No. 12-60264, December 12, 2014 TAYLOR BELL; DORA BELL, Plaintiff, v.

ITAWAMBA COUNTY SCHOOL BOARD; TERESA MCNEECE, Superintendent of Education for Itawamba County, individually and in her official capacity; TRAE WIYGUL, Principal of Itawamba Agricultural High School, individually and in his official capacity, Defendant.

Summary: This appeal raises a First Amendment challenge to a public high school student’s suspension and transfer to alternative school for his off-campus posting on the Internet of a rap song criticizing, with vulgar and violent lyrics, two named male athletic coaches for sexually harassing female students at his school. The aspiring student rapper, Taylor Bell, composed the song off campus, recorded it at a professional studio unaffiliated with the school, and posted it on his Facebook page and on YouTube using his personal computer while at home. Bell had never before been charged with a serious school disciplinary violation. After the disciplinary action was imposed and affirmed by the Itawamba County School Board, Bell and his mother, Dora Bell, sued the School Board, its Superintendent, and the school’s Principal, for violation of Bell’s freedom of speech under the First Amendment and Dora Bell’s substantive-due-process right to parental authority under the Fourteenth Amendment. Upon cross-motions for summary judgment, the district court rendered summary judgment for the School Board and its officials. The Bells appealed.

We reverse the district court’s judgment in favor of the School Board against Taylor Bell and render summary judgment against the School Board in favor of Taylor Bell, awarding him nominal damages as prayed for, and other relief, for the Board’s violation of his First Amendment right to freedom of speech. The summary-judgment evidence and materials establish that Bell composed and recorded his rap song completely off campus; that he used his home computer to post it on the Internet during non-school hours; and that the School Board did not demonstrate that Bell’s song caused a substantial disruption of school work or discipline, or that school officials reasonably could have forecasted such a disruption. Otherwise, the district court’s grant of summary judgment in favor of Defendants-Appellees against Dora Bell is affirmed, as well as the district court’s summary judgment for the individual school officials.

196

United States District Court, E.D. Missouri, Southeastern Division 30 F.Supp.2d 1175 (1998) Brandon BEUSSINK, by and through his parent and next friend, Nadean Beussink, Plaintiff, v.

WOODLAND R-IV SCHOOL DISTRICT, Defendant.

Summary: This matter is before the Court on plaintiff's request for a preliminary injunction. A hearing on the request for a preliminary injunction was held on October 8, 1998.

Plaintiff, Brandon Beussink ("Beussink"), claims that the Woodland R-IV School District ("the Woodland School District") violated his rights under the First Amendment to the United States Constitution. Specifically, Beussink claims that the Woodland School District suspended him from school for ten days because he had posted a homepage on the Internet which was critical of Woodland High School. The homepage's criticism of the high school included crude and vulgar language.

The evidence presented at the hearing satisfies the standard for granting preliminary injunctive relief in Beussink's favor. The request for a preliminary injunction will be granted.

197

United States Court of Appeals, Second Circuit 642 F.3d 334 (2011) Avery DONINGER, Plaintiff-Appellee-Cross-Appellant, v.

Karissa NIEHOFF, Paula Schwartz, Defendants-Appellants-Cross-Appellees.

Summary: We are once again called upon to consider the circumstances in which school administrators may discipline students for speech relating directly to the affairs of the school without running afoul of the First Amendment. More precisely, we must determine if the defendant-school administrators before us are entitled to qualified immunity on the plaintiff-student's claims that they violated her First Amendment rights by (1) preventing her from running for Senior Class Secretary as a direct consequence of her off-campus internet speech, and (2) prohibiting her from wearing a homemade printed t-shirt at a subsequent school assembly.

Plaintiff-Appellee-Cross-Appellant Avery Doninger ("Doninger" or "Plaintiff") appeals from a January 15, 2009, decision of the United States District Court for the District of Connecticut (Kravitz, J.)—as well as a March 19, 2009, denial of a motion for reconsideration—granting partial summary judgment to Defendants-Appellants-Cross-Appellees Karissa Niehoff, principal at Lewis S. Mills High School ("LMHS" or "the School") in Burlington, Connecticut, and Paula Schwartz, superintendent of the school district in which LMHS is located (together, "Defendants"), on the claim that Defendants violated Plaintiff's First Amendment rights when they prohibited her from running for Senior Class Secretary in response to a blog entry that Doninger posted from her home during non-school hours.[1] Because we conclude that the asserted First Amendment right at issue was not clearly established, we affirm the district court's decision on the ground that Defendants were entitled to qualified immunity. Doninger also appeals the district court's grant of summary judgment to Defendants on her Equal Protection selective-enforcement claim, its sua sponte dismissal without prejudice of her claims under the Connecticut state constitution, and the court's determination, on her motion for reconsideration, that she failed properly to assert a claim pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).[2] We affirm the district court's determination on these claims as well.

Defendants appeal the district court's partial denial of their motion for summary judgment, asserting that they are entitled to qualified immunity on Doninger's remaining 339*339 First Amendment claim—a claim alleging that her rights were violated when Niehoff prohibited her from displaying in a school assembly a homemade t-shirt emblazoned with "Team Avery" on the front and "Support LSM Freedom of Speech" on the back. We reverse the district court on the basis that Defendants are entitled to qualified immunity on this claim as well, since, given the legal framework and the particular factual circumstances of this case, the rights at issue were not clearly established.

198

In The United States Court Of Appeals For The Sixth Circuit No. 11-6476, March 28, 2013 G.C., Plaintiff-Appellant, v.

OWENSBORO PUBLIC SCHOOLS; LARRY VICK, in his individual capacity as Superintendent of Owensboro High School; ANITA BURNETTE, in her individual capacity as Principal of Owensboro High School; MELISSA BROWN and CHRISTINA SMITH, in their individual capacities as Assistant Principals of Owensboro High School, DefendantsAppellees.

Summary: Plaintiff-Appellant G.C. began attending school in the Owensboro Public School District as an out-of-district student in 2005. In September 2009, G.C. was caught sending text messages in class. School officials confiscated his cell phone and read the text messages. Because this was the last in a series of disciplinary infractions, Superintendent Dr. Larry Vick (“Vick”) revoked G.C.’s out-of-district status, barring him from attending Owensboro High School. G.C. filed suit, raising both federal and state-law claims against Defendants-Appellees Owensboro Public Schools, Vick, Principal Anita Burnette (“Burnette”), Assistant Principal Melissa Brown (“Brown”), and Assistant Principal Christina Smith (“Smith”), (collectively, “defendants”). The defendants moved for summary judgment, which the district court granted.

G.C. appeals the district court’s resolution of three of his claims: (1) his due process claim, in which he argues that he was denied a hearing prior to expulsion as required by Kentucky statute; (2) his Fourth Amendment claim based on the September 2009 search, in which he contends that school officials violated his constitutional rights when they read text messages on his phone without the requisite reasonable suspicion; and (3) his Rehabilitation Act claim, in which he argues that the defendants failed to identify him as disabled under § 504.

For the reasons stated below, we REVERSE the district court’s grant of summary judgment on G.C.’s due-process claim and on G.C.’s Fourth Amendment claim based on the September 2009 search. We AFFIRM the district court’s grant of summary judgment on G.C.’s Rehabilitation Act claim. We REMAND for further proceedings consistent with this opinion.

199

In The United States District Court For The Eastern District of Virginia Civil Case No. 3:14cv009, August 5, 2014 DANIEL AND MANUELA GALLIMORE, PARENTS AND NEXT FRIENDS OF W.S.G. a minor, Plaintiffs, v.

HENRICO COUNTY SCHOOL BOARD, DIANE R. SAUNDERS, and ROBERT A. TURPIN, III, Defendants.

Summary: This matter comes before the Court on the defendants' motions to dismiss. (Dk. Nos. 8 and 10.)

On February 11, 2013, defendants Robert A. Turpin III, ("Turpin") and Diane R. Saunders ("Saunders") searched W.S.G., a student at Hermitage High School, for drugs. W.S.G. asserts two counts against the defendants. First, W.S.G. alleges Fourth Amendment violations against: the Henrico County School Board; Turpin, the Assistant Principal of Hermitage High School; and Saunders, Hermitage High School's Associate Principal. Second, W.S.G. alleges assault and battery claims arising under Virginia law against Turpin and the School Board.

The Court GRANTS the motions to dismiss the Fourth Amendment violation against Turpin and the School Board, but DENIES the motions as to Saunders. As to the assault and battery claim, the Court GRANTS the motions to dismiss the assault and battery claim against both Turpin and the School Board.

200

In The United States Court Of Appeals For The Third Circuit No. 08-4138, June 13, 2011 J.S., a minor, through her parents; TERRY SNYDER; STEVEN SNYDER, Appellants, v.

BLUE MOUNTAIN SCHOOL DISTRICT; JOYCE ROMBERGER; JAMES McGONIGLE. Summary: J.S., a minor, by and through her parents, Terry Snyder and Steven Snyder, individually and on behalf of their daughter, appeal the District Court’s grant of summary judgment in favor of the Blue Mountain School District (“the School District”) and denial of their motion for summary judgment. This case arose when the School District suspended J.S. for creating, on a weekend and on her home computer, a MySpace profile (the “profile”) making fun of her middle school principal, James McGonigle. The profile contained adult language and sexually explicit content.

J.S. and her parents sued the School District under 42 U.S.C. § 1983 and state law, alleging that the suspension violated J.S.’s First Amendment free speech rights, that the School District’s policies were unconstitutionally overbroad and vague, that the School District violated the Snyders’ Fourteenth Amendment substantive due process rights to raise their child, and that the School District acted outside of its authority in punishing J.S. for out-of-school speech.

Because J.S. was suspended from school for speech that indisputably caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school, the School District’s actions violated J.S.’s First Amendment free speech rights. We will accordingly reverse and remand that aspect of the District Court’s judgment.

However, we will affirm the District Court’s judgment that the School District’s policies were not overbroad or void-for vagueness, and that the School District did not violate the Snyders’ Fourteenth Amendment substantive due process rights.

201

United States District Court Northern District Of Mississippi Delta Division Civil Action No.: 2:09-cv-00155-MPM-DAS, November 1, 2010 J.W., individually and on behalf of her minor son, R.W, Plaintiffs, v.

DESOTO COUNTY SCHOOL DISTRICT, UNNAMED DESOTO COUNTY SCHOOL DISTRICT EMPLOYEE, in his individual and official capacities, COACH JOHN STEVENSON in his individual and official capacities, COACH KENNETH WALKER, in his individual and official capacities, CITY OF SOUTHAVEN, MISSISSIPPI, and SOUTHAVEN POLICE SERGEANT KENNEDY, in his individual and official capacities, Defendants.

Summary: This cause comes before the court on the motion of the individual defendants and the City of Southaven to dismiss and/or for summary judgment, pursuant to Fed. R. Civ. P. 12 and 56.

Plaintiff J.W., individually and on behalf of her minor son R.W., has responded in opposition to the motion, and the court, having considered the memoranda and submissions of the parties, concludes that the motions are well taken and should be granted. The Desoto County School District has not sought dismissal from this case, and the court concludes, for the reasons stated below, that the allegations against it will likely be considered by a jury.

202

United States District Court for the Eastern District of Pennsylvania Civil Action No.: 04-CV-03606 TOBY KLUMP, LEIGH KLUMP and CHRISTOPHER KLUMP, Plaintiffs, v.

NAZARETH AREA SCHOOL DISTRICT; VICTOR J. LESKY, Superintendent; MARGARET GRUBE, Assistant Principal; and SHAWN KIMBERLY KOCHER, Defendants.

Summary: This matter is before the court on Defendants Nazareth Area School District, Victor J. Lesky, Margaret Grube, and Kimberly Kocher’s Motion to Dismiss. We also considered Plaintiffs’ Memorandum of Law in Opposition to Defendant’s Motion to Dismiss Plaintiffs’ Complaint and Defendants’ Reply Brief in Support of Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint. For the reasons expressed below, we grant in part and deny in part defendants’ motion to dismiss.

Specifically, we grant defendants’ motion to dismiss Counts I and V. We also dismiss defendant Nazareth Area School District from Counts II, III, and X. We dismiss the claim for compensatory and punitive damages from Count VII. We strike all references to 18 Pa.C.S.A. §§ 3926(b), 4120 and 5301 from paragraph 20 of plaintiffs’ Complaint. In all other respects, we deny defendants’ motion to dismiss.

203

In The United States Court Of Appeals For The Fourth Circuit No. 10-1098, July 27, 2011 KARA KOWALSKI, Plaintiff-Appellant, v.

BERKELEY COUNTY SCHOOLS, a public school district; MANNY P. ARVON, II, Superintendent, in his official capacity; RONALD STEPHENS, Principal, in his official capacity and individually; BECKY J. HARDEN, Vice Principal, in her official capacity and individually; BUFFY ASHCRAFT, cheerleading coach, in her official capacity and individually; RICK DEUELL, Assistant Superintendent, in his official capacity, Defendants-Appellees.

Summary: When Kara Kowalski was a senior at Musselman High School in Berkeley County, West Virginia, school administrators suspended her from school for five days for creating and posting to a MySpace.com webpage called "S.A.S.H.," which Kowalski claims stood for "Students Against Sluts Herpes" and which was largely dedicated to ridiculing a fellow student. Kowalski commenced this action, under 42 U.S.C. § 1983, against the Berkeley County School District and five of its officers, contending that in disciplining her, the defendants violated her free speech and due process rights under the First and Fourteenth Amendments. She alleges, among other things, that the School District was not justified in regulating her speech because it did not occur during a "school related activity," but rather was "private out-of-school speech."

The district court entered summary judgment in favor of the defendants, concluding that they were authorized to punish Kowalski because her webpage was "created for the purpose of inviting others to indulge in disruptive and hateful conduct," which caused an "in-school disruption."

Reviewing the summary judgment record de novo, we conclude that in the circumstances of this case, the School District’s imposition of sanctions was permissible. Kowalski used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District’s recognized authority to discipline speech which "materially and substantially interfere[es] with the requirements of appropriate discipline in the operation of the school and collid[es] with the rights of others."

Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 513 (1969) (internal quotation marks omitted). Accordingly, we affirm.

204

In The United States Court Of Appeals For The Third Circuit No. 07-4465, February 4, 2010 JUSTIN LAYSHOCK, a minor, by and through his parents; DONALD LAYSHOCK; CHERYL LAYSHOCK, individually and on behalf of their son, v.

HERMITAGE SCHOOL DISTRICT KAREN IONTA, District Superintendent; ERIC W. TROSCH, Principal Hickory High School, CHRIS GILL, Co-Principal Hickory High School, all in their official and individual capacity Hermitage School District, Appellant.

Summary: We are asked to determine if a school district can punish a student for expressive conduct that originated outside of the schoolhouse, did not disturb the school environment and was not related to any school sponsored event. We hold that, under these circumstances, the First Amendment prohibits the school from reaching beyond the schoolyard to impose what might otherwise be appropriate discipline.

It all began when Justin Layshock used his grandmother’s computer to access a popular social networking internet web site where he created a fake internet “profile” of his Hickory High School Principal, Eric Trosch. His parents filed this action under 42 U.S.C. § 1983, after the School District punished Justin for that conduct. The suit alleges, inter alia, that the School District’s punishment transcended Justin’s First Amendment right of expression. The district court granted summary judgment in favor of Justin on his First Amendment claim. We originally affirmed the district court. See Layshock v. Hermitage School Dist., 593 F.3d 249 (3d Cir. 2010). Thereafter, we entered an order vacating that opinion and granting rehearing en banc.

For the reasons that follow, we once again affirm the district court’s holding that the school district’s response to Justin’s conduct transcended the protection of free expression guaranteed by the First Amendment.

205

In The United States Court Of Appeals For The Sixth Circuit No. 06-6172, August 3, 2007 JEFF LOWERY, individually and as next friend of Derrick “Rabbit” Lowery, LISA A. LOWERY, individually and as next friend of Derrick “Rabbit” Lowery, RANDY GILES, individually and as next friend of Jacob Giles, STACEY GUTHRIE, individually and as next friend of Joseph Dooley, JAMES SPURLOCK, individually and as next friend of Dillan Spurlock, LORA SPURLOCK, individually and as next friend of Dillan Spurlock, PlaintiffsAppellees, v.

MARTY EUVERARD, DALE SCHNEITMAN, CRAIG KISABETH, JEFFERSON COUNTY BOARD OF EDUCATION, Defendants-Appellants.

Summary: Plaintiffs brought suit in federal court after they were dismissed from their high school football team. Defendants brought a motion for summary judgment based on qualified immunity, which the district court denied. On appeal, Defendants argue that Plaintiffs’ dismissal was permissible under the rule governing student speech set forth in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). For the reasons set forth below, we REVERSE the district court’s denial of Defendants’ motion for summary judgment.

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In The United States District Court for the Southern District of Texas, Houston Division Civil Action No. H-09-3895, March 15, 2011 JENNIFER MENDOZA, INDIVIDUALLY AND AS NEXT FRIEND OF A.M., Plaintiffs, v.

KLEIN INDEPENDENT SCHOOL DISTRICT, W. SCOTT CROWE and STEPHANIE LANGNER IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES, Defendants.

Summary: Pending before the court is Plaintiff’s Motion for Summary Judgment and Defendants’ Motion for Summary Judgment. For the reasons discussed below, it is RECOMMENDED that Plaintiffs’ motion be DENIED and that Defendants’ motion be GRANTED IN PART, DENIED IN PART.

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In The United States Court Of Appeals For The Eighth Circuit 696 F.3d 771 (2012), October 17, 2012 S.J.W., By and Through His Parents, Brian WILSON and Linda Wilson; S.W.W., By and Through His Parents, Brian Wilson and Linda Wilson, Plaintiffs-Appellees, v.

LEE'S SUMMIT R-7 SCHOOL DISTRICT; Dr. David McGehee, Superintendent, In His Individual and Official Capacity; Jack Wiley, Board President, In His Individual and Official Capacity; Chris Storms, Board Member, In His Individual and Official Capacity; Terri Harmon, Board Member, In Her Individual and Official Capacity; Patti Buie, Board Member, In Her Individual and Official Capacity; Ron Baker, Board Member, In His Individual and Official Capacity, Defendants-Appellants.

Summary: The Lee's Summit R-7 School District ("the School District") issued 180-day suspensions to twin brothers Steven and Sean Wilson (together, "the Wilsons") on January 11, 2012 for disruption caused by a website the Wilsons created. The Wilsons filed suit against the School District on March 6, 2012, alleging, along with other claims, that the School District violated their rights to free speech. The Wilsons also filed a Motion for a Preliminary Injunction to lift their suspensions. On March 23, 2012, the District Court entered an Order granting the Wilsons' Motion for a Preliminary Injunction. The School District filed a Notice of Appeal on March 27, 2012. The School District also filed an Expedited Motion for a Stay Pending Appeal on March 29, 2012, which we denied.

The matter currently before this court is the School District's appeal of the Order granting the Wilsons' Motion for a Preliminary Injunction. We hold that the District Court's findings do not support a preliminary injunction. Accordingly, we vacate the District Court's Order and reverse the preliminary injunction.

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In The United States District Court for the Northern District of Indiana, Fort Wayne Division No. 1:09-CV-290-PPS, August 10, 2011 T.V., a minor child, by her parents, legal guardians and next friends, B.V. and T.V., and M.K., a minor child, by her parents, legal guardians and next friends, G.K. and R.K., Plaintiffs, v.

SMITH-GREEN COMMUNITY SCHOOL CORPORATION and AUSTIN COUCH, Principal of Churubusco High School, Defendants.

Summary: Not much good takes place at slumber parties for high school kids, and this case proves the point. During a summer sleepover, plaintiffs – 16 year old T.V. and 15 year old M.K. – posed for some raunchy photos which they later posted online. When school officials caught wind of the saucy online display, they suspended both girls from extracurricular activities for a portion of the upcoming school year. This lawsuit, brought by T.V. and M.K. through their parents, seeks to vindicate their First Amendment rights. The defendants are the Smith-Green Community School Corporation and Austin Couch, the principal of Churubusco High School. Both sides now seek summary judgment. The case poses timely questions about the limits school officials can place on out of school speech by students in the information age where Twitter, Facebook, MySpace, texts, and the like rule the day. The school argues that they ought to be allowed to regulate this speech while the students claim that their First Amendment rights are being violated.

Let’s be honest about it: the speech in this case doesn’t exactly call to mind high-minded civic discourse about current events. And one could reasonably question the wisdom of making a federal case out of a 6-game suspension from a high school volleyball schedule. But for better or worse, that’s what this case is about and it is now ripe for disposition.

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In The United States District Court for the Northern District of New York 5:02-CV-1403, June 20, 2006 MARTIN and ANNETTE WISNIEWSKI, on behalf of their son Aaron Wisniewski, Plaintiffs, v.

THE BOARD OF EDUCATION OF THE WEEDSPORT CENTRAL SCHOOL DISTRICT and RICHARD MABBETT, Superintendent of Schools, Defendants.

Summary: Presently before the Court is defendants’ motion for summary judgment (Dkt. No. 38). Upon being charged with threatening a teacher, Aaron Wisniewski (“Aaron”), then a student at Weedsport Middle School, was afforded a Superintendent’s Hearing pursuant to New York Education Law, § 3214(3)(c)(1). The Hearing Officer found that Aaron had circulated through the internet a threat to kill one of his teachers and recommended suspension for a semester.

Defendant Board of Education of Weedsport Central School District (“Board”) accepted the Hearing Officer’s findings and imposed the recommended suspension. Plaintiffs claim that defendant’ actions violated Aaron’s rights under the First Amendment, 42 U.S.C. § 1983, and the New York Education Law. For the reasons set forth below, the Court grants defendants’ motion for summary judgment and dismisses the federal causes of action on the merits. The Court declines to retain jurisdiction over the state law claims and dismisses them without prejudice.

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In The United States Court Of Appeals For The Ninth Circuit No. 11-17127, August 29, 2013 MARK WYNAR, an individual and as guardian of Landon Wynar; LANDON WYNAR, a Minor, Plaintiffs-Appellants, v.

DOUGLAS COUNTY SCHOOL DISTRICT, a political subdivision of the State of Nevada; CAROL LARK; NANCY BRYANT; MARTY SWISHER; DAVID PYLE; CYNTHIA TRIGG; KEITH ROMAN; SHARLA HALES, Defendants-Appellees.

Summary: The panel affirmed the district court’s summary judgment in an action brought under 42 U.S.C. § 1983 by a high school student and his father after the student was temporarily expelled for sending violent and threatening instant messages from his home to his friends about planning a school shooting.

The panel held that the messages, which threatened the safety of the school and its students, both interfered with the rights of other students and made it reasonable for school officials to forecast a substantial disruption of school activities. The panel held that when faced with an identifiable threat of school violence, schools may take disciplinary action in response to offcampus speech that meets the requirements of Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Under the circumstances, the panel concluded that the school district did not violate the student’s rights to freedom of expression or due process.

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Notes _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ 212

Whose Fault is it Anyway?

Robert G. Wheeler, Jr., Attorney

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Whose Fault is It Anyway?

Robert G. Wheeler, Jr. Attorney

SCHOOL SYSTEM LIABILITY ISSUES IN ACCIDENT CASES ¤ Statutes ¤ T.C.A. 49-2-203 (b)(4)(A) ¤ T.C.A. 29-20-101 et. seq. -- Governmental Tort Liability Act ¤ T.C.A. 29-20-112. Immunity of local board of education and school officials for activities outside of regularly scheduled school activities on premises of public schools.

T.C.A. 49-2-203 (b)(4)(A) ¤ No member of the board or other school official shall be held liable in damages for any injury to person or property resulting from the use of school buildings or property;

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T.C.A. 29-20-101 et. seq. -Governmental Tort Liability Act ¤ (3) (A) "Governmental entity" means any political subdivision of the state of Tennessee including, but not limited to, any municipality, metropolitan government, county, utility district, school district, nonprofit volunteer fire department receiving funds appropriated by a county legislative body or a legislative body of a municipality, human resource agency, community action agency or nonprofit corporation that administers the Head Start or Community Service Block Grant programs, public building authority, and development district created and existing pursuant to the constitution and laws of Tennessee, or any instrumentality of government created by any one (1) or more of the named local governmental entities or by an act of the general assembly;

T.C.A. 29-20-101 et. seq. -Governmental Tort Liability Act ¤ (4) "Injury" means death, injury to a person, damage to or loss of property or any other injury that one may suffer to one's person, or estate, that would be actionable if inflicted by a private person or such person's agent.

29-20-112. Immunity of local board of education and school officials for activities outside of regularly scheduled school activities on premises of public schools. (a) For purposes of this section: (1) "Premises" means any and all real property, natural or artificial landscape or waterway thereon, building, bathroom, gymnasium, facility, track, playground, tennis or badminton court, horseshoe pit, bleachers, stage, or other improvement erected on the premises for recreational purposes; (2) "Recreational activity" means any activity undertaken for exercise, pleasure, or other recreational purposes including, but not limited to, basketball, football, soccer, baseball, softball, tennis, lacrosse, running, walking, wrestling, cheerleading, taekwondo, karate, community gardening and music lessons; and (3) "Recreational joint use agreement" means a written authorization by a local board of education or a school official permitting a public or private entity to access the premises of a public school for the purpose of conducting or engaging in recreational activity and addressing conditions under which the permission is granted.

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Planning-Operational Test ¤ Under the planning-operational test, decisions that rise to the level of planning or policy-making are considered discretionary acts which do not give rise to tort liability, while decisions that are merely operational are not considered discretionary acts and, therefore, do not give rise to immunity. ¤ Bowers v. City of Chattanooga --

(b) (1) Except as provided in subdivision (b)(3), neither a local board of education nor a school official owes a duty of care to keep the premises of a public school safe for entry or use by others outside of regularly scheduled school activities or to give warning of unknown dangerous or hazardous conditions, uses, structures or activities on the premises.

(2) Unless otherwise specified in the agreement, if a recreational activity is conducted pursuant to a recreational joint use agreement, the local board of education or school official entering the agreement does not owe a greater duty of care than that which is owed under subdivision (b)(1).

¤ (3) Notwithstanding the duty of care or duty to warn owed pursuant to this subsection (b), the immunity conferred upon a local board of education or school official by the recreational joint use agreement shall not apply to a person who is injured or suffers property damage on school property pursuant to such agreement if the injury or damage was proximately caused by the gross negligence, or willful, wanton or malicious conduct of the local board of education or school official.

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(c) Where a local board of education or school official enters a recreational joint use agreement, with respect to persons accessing the premises for recreational activity pursuant to that agreement, neither the local board of education nor a school official shall be construed to have: (1) Waived any immunity under this chapter; (2) Extended immunity under this chapter to another entity; (3) Extended any assurance to any person or entity accessing the premises that the premises are safe for any other purpose than that which is agreed upon; (4) Conferred upon a person the legal status of a person to whom a duty of care is owed;

(d) When entering into a recreational joint use agreement under rules, regulations, and conditions prescribed by the local board of education pursuant to § 49-2-203(b)(4), the general assembly encourages local boards of education and school officials to require, in the agreement, that the other entity maintain and provide proof of adequate liability and accident insurance coverage as determined by insurance industry standards, and to address, in the agreement, issues including, but not limited to, security, adult supervision of recreational activity, prohibited activity, hours of operation, use of equipment, maintenance, and damage to the premises. Any such joint use agreement entered into shall contain notice of the immunity provided by this section. (e) This section shall apply to contracts entered or renewed on or after July 1, 2011.

¤ School premises accident cases are normally filed under the theory of negligence. Negligence has its own definition. and that definition always includes the word “duty”.

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§ 3.05 Definition of Negligence ¤ Negligence is the failure to use ordinary or reasonable care. It is either doing something that a reasonably careful person would not do, or the failure to do something that a reasonably careful person would do, under all of the circumstances in this case. The mere happening of an injury or accident does not, in and of itself, prove negligence.

A person may assume that every other person will use reasonable care, unless a reasonably careful person has cause for thinking otherwise.

¤ We simply owe a duty to each other to act reasonably under the circumstances then and there existing, and we have a duty not to do things that will potentially harm others. The word “potentially” imputes another term that is the watchword in negligence cases:

FORESEEABILITY ¤ Foreseeability is the test for negligence, and the inquiry is whether defendant's conduct created an unreasonable risk of harm to plaintiff.

Spivey v. St. Thomas Hosp., 31 Tenn. App. 12, 211 S.W.2d 450 (1947); Lancaster v. Montesi, 216 Tenn. 50, 390 S.W.2d 217 (1965). ¤ The risk involved is that which is foreseeable; a risk is foreseeable if a reasonable person could foresee the probability of its occurrence or if the person was on notice that the likelihood of danger to the party to whom is owed a duty is probable. Foreseeability is the test of negligence. Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994).

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Case Law ¤ Roberts v. Robertson County Board of Education ¤ Decided April 11, 1985

Case Law ¤ Cadorette v. Sumner County Board of Education ¤ Decided April 19, 1996

Case Law ¤ Neal v. Fayette County Board of Education ¤ Decided May 9, 1996

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Case Law ¤ Denson v. Metro-Nashville Public Schools ¤ Decided August 12, 1999

Case Law ¤ Wilson v. Metro-Nashville ¤ Decided January 27, 2009

Case Law ¤ Haney v. Bradley County Board of Education ¤ Decided September 20, 2004

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SCHOOL SYSTEM LIABILITY ISSUES IN ACCIDENT CASES Rob Wheeler ____________________________ T.C.A. 49-2-203 (b)(4)(A) No member of the board or other school official shall be held liable in damages for any injury to person or property resulting from the use of school buildings or property; ____________________________ T.C.A. 29-20-101 et. seq. -- Governmental Tort Liability Act (3) (A) "Governmental entity" means any political subdivision of the state of Tennessee including, but not limited to, any municipality, metropolitan government, county, utility district, school district, nonprofit volunteer fire department receiving funds appropriated by a county legislative body or a legislative body of a municipality, human resource agency, community action agency or nonprofit corporation that administers the Head Start or Community Service Block Grant programs, public building authority, and development district created and existing pursuant to the constitution and laws of Tennessee, or any instrumentality of government created by any one (1) or more of the named local governmental entities or by an act of the general assembly; ____________________________________ (4) "Injury" means death, injury to a person, damage to or loss of property or any other injury that one may suffer to one's person, or estate, that would be actionable if inflicted by a private person or such person's agent. ____________________________ 29-20-112. Immunity of local board of education and school officials for activities outside of regularly scheduled school activities on premises of public schools. (a) For purposes of this section: (1) "Premises" means any and all real property, natural or artificial landscape or waterway thereon, building, bathroom, gymnasium, facility, track, playground, tennis or badminton court, horseshoe pit,

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bleachers, stage, or other improvement erected on the premises for recreational purposes; (2) "Recreational activity" means any activity undertaken for exercise, pleasure, or other recreational purposes including, but not limited to, basketball, football, soccer, baseball, softball, tennis, lacrosse, running, walking, wrestling, cheerleading, taekwondo, karate, community gardening and music lessons; and (3) "Recreational joint use agreement" means a written authorization by a local board of education or a school official permitting a public or private entity to access the premises of a public school for the purpose of conducting or engaging in recreational activity and addressing conditions under which the permission is granted. ______________________________ Under the planning-operational test, decisions that rise to the level of planning or policy-making are considered discretionary acts which do not give rise to tort liability, while decisions that are merely operational are not considered discretionary acts and, therefore, do not give rise to immunity.

Bowers v. City of Chattanooga -_________________________ (b) (1) Except as provided in subdivision (b)(3), neither a local board of education nor a school official owes a duty of care to keep the premises of a public school safe for entry or use by others outside of regularly scheduled school activities or to give warning of unknown dangerous or hazardous conditions, uses, structures or activities on the premises.

(2) Unless otherwise specified in the agreement, if a recreational activity is conducted pursuant to a recreational joint use agreement, the local board of education or school official entering the agreement does not owe a greater duty of care than that which is owed under subdivision (b)(1). ______________________________ (3) Notwithstanding the duty of care or duty to warn owed pursuant to this subsection (b), the immunity conferred upon a local board of education or school official by the recreational joint use agreement shall not apply to a person who is injured or suffers property damage

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on school property pursuant to such agreement if the injury or damage was proximately caused by the gross negligence, or willful, wanton or malicious conduct of the local board of education or school official. ___________________________ (c) Where a local board of education or school official enters a recreational joint use agreement, with respect to persons accessing the premises for recreational activity pursuant to that agreement, neither the local board of education nor a school official shall be construed to have: (1) Waived any immunity under this chapter; (2) Extended immunity under this chapter to another entity; (3) Extended any assurance to any person or entity accessing the premises that the premises are safe for any other purpose than that which is agreed upon; (4) Conferred upon a person the legal status of a person to whom a duty of care is owed; ___________________________ (d) When entering into a recreational joint use agreement under rules, regulations, and conditions prescribed by the local board of education pursuant to ยง 49-2-203(b)(4), the general assembly encourages local boards of education and school officials to require, in the agreement, that the other entity maintain and provide proof of adequate liability and accident insurance coverage as determined by insurance industry standards, and to address, in the agreement, issues including, but not limited to, security, adult supervision of recreational activity, prohibited activity, hours of operation, use of equipment, maintenance, and damage to the premises. Any such joint use agreement entered into shall contain notice of the immunity provided by this section. (e) This section shall apply to contracts entered or renewed on or after July 1, 2011. ___________________________________

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School premises accident cases are normally filed under the theory of negligence. Negligence has its own definition. and that definition always includes the word “duty”. ___________________________________ § 3.05 DEFINITION OF NEGLIGENCE Negligence is the failure to use ordinary or reasonable care. It is either doing something that a reasonably careful person would not do, or the failure to do something that a reasonably careful person would do, under all of the circumstances in this case. The mere happening of an injury or accident does not, in and of itself, prove negligence.

A person may assume that every other person will use reasonable care, unless a reasonably careful person has cause for thinking otherwise. _________________________

We simply owe a duty to each other to act reasonably under the circumstances then and there existing, and we have a duty not to do things that will potentially harm others. The word “potentially” imputes another term that is the watchword in negligence cases: ______________________________ FORESEEABILITY Foreseeability is the test for negligence, and the inquiry is whether defendant's conduct created an unreasonable risk of harm to plaintiff. Spivey v. St. Thomas Hosp., 31 Tenn. App. 12, 211 S.W.2d 450 (1947); Lancaster v. Montesi, 216 Tenn. 50, 390 S.W.2d 217 (1965).

The risk involved is that which is foreseeable; a risk is foreseeable if a reasonable person could foresee the probability of its occurrence or if the person was on notice that the likelihood of danger to the party to whom is owed a duty is probable. Foreseeability is the test of negligence. Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994). _________________________________________

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WALLACE GLENN ROBERTS, JR., Plaintiff/Appellant, v. ROBERTSON COUNTY BOARD OF EDUCATION, JEROME ELLIS, Superintendent of Schools, STEVE MOSS, and WILLIAM BALLARD, Defendants/Appellees, v. WILLIAM EDWARD YOUNT, Third Party Defendant [NO NUMBER IN ORIGINAL] Court of Appeals of Tennessee, Middle Section, at Nashville 692 S.W.2d 863; 1985 Tenn. App. LEXIS 2802 April 11, 1985 A fourteen year old freshman was in a voc. rehab./shop class.

There were 23 other students in the class. Teacher had been teaching the class 9 years. He did not rely on a written lesson plan, but, rather, his “philosophy on learning students” was -- “I just go historically day to day. After so many years, it just sort of falls in. And there are some old lesson books there, maybe ten, twelve years old. Every once in a while you will thumb through and pick up where you left off.”

The students on this day were working with a drill press. The student wanted to make a lamp stand for his family for Christmas. It was just before the holidays. The work required a much longer drill bit than the students normally used. The teacher kept that one in his desk drawer. The teacher gave the drill bit to the student and told him to wait until he, the teacher, got back in the room. The student testified that the teacher told him to go ahead. Regardless, the teacher then left the room. After waiting ten minutes for the teacher to return, the student proceeded to apply the wood to the press.

Another student, Roberts, was asked to help hold the wood as the press was applied. Roberts knelt down to make sure it was held appropriately. The bit was not fastened tightly enough – “…. The drill bit caused a long cut and skull fracture from Roberts’ right temple to behind his right ear.” The teacher did not know what happened until someone came and got him.

“Teachers and local school districts arenot expected to be insurers of the safety of students while they are at school. Nor are teachers expected in every case in every instance to supervise all the activities of all students at all times. Teachers …….. are required to exercise such care as ordinarily reasonable and prudent person would exercise under the same or similar circumstances.” “….. we do not impose upon [teachers] the duty to anticipate or foresee the hundreds of unexpected student acts that occur daily in our public schools. However, we have no hesitation in holding a

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teacher or local school system to the duty of safeguarding students while at school from reasonably foreseeable dangerous conditions including the dangerous acts to fellow students.”

“Based on our review of the record, we conclude that the evidence supports a finding that the teacher was negligent and that his failure to furnish adequate instruction and supervision to his vocational agriculture students was the proximate cause of Roberts’ injuries.” ________________________________

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DONALD A. CADORETTE and LYNEE CADORETTE, as parents and next friend of MICHAEL TODD CADORETTE, Plaintiffs/Appellants v.SUMNER COUNTY BOARD OF EDUCATION and SUMNER COUNTY, TENNESSEE, Defendants/Appellees NO. 01A01-9510-CV-00441 COURT OF APPEALS OF TENNESSEE, MIDDLE SECTION, AT NASHVILLE 1996 Tenn. App. LEXIS 239 April 19, 1996, FILED Beech High student suffered a head injury during an art class.

The student, a 15 years old ninth grade student, volunteered to model while others sketched him. He fainted and fell off a table he was standing on while modeling.

In examining the record we note that the injury in this suit did not involve a dangerous instrumentality as it did in the Robertson County case. Here, we have an outgoing and vigorously healthy fifteen year old who volunteered to stand on a table and model for his art class. There is no evidence that the table was unsteady, nor is there any proof that the student indicated that he was in any way ill, or physically unable to perform the task. Even after taking into consideration that fact that the student stood on a four-foot high table, thereby increasing the “gravity of the possible harm, “ we cannot say that the “falling type injury,” is foreseeable when viewing the record as a whole. _________________________________________

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JOYCE ANN NEAL, Individually and as parent and next of kin of the minor child, BRANDON DEVORIS NEAL, Plaintiff/Appellant, VS. FAYETTE COUNTY BOARD OF EDUCATION, DALE SUMMITT, Superintendent of Schools, WILLIAM A. WEDDLE, Principal of Northwest Elementary School, JEAN BELLE, Teacher, Defendants/Appellees.

Appeal No. 02A01-9412-CV-00271 COURT OF APPEALS OF TENNESSEE, WESTERN SECTION, AT JACKSON 1996 Tenn. App. LEXIS 276 May 9, 1996, FILE The student, age eleven, was injured while playing basketball and attempting to dunk when his little finger became lodged in a crevice in the goal, and, as a result, his finger was partially amputated above the first joint. In support of his case, the student relied heavily upon the fact that two students had previously suffered similar injuries on the goal. The teacher was standing about twelve feet from the goal at the time of the injury.

Reasoning that the goal was neither dangerous nor defective and that the student caused his own injuries through his misuse of the goal, the trial court held in favor of the school board. The Court of Appeals sustained that ruling as well as saying that any negligence on the part of the Board is without merit â&#x20AC;&#x201C; â&#x20AC;&#x153;Finally, any alleged negligence on the part of the defendant in failing to remove the goal after the pervious injuries would not be actionable because the decision whether to remove the goal would be a discretionary function for which governmental immunity is not removed.

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LANE DENSON, a minor, b/n/f JOHN DENSON, father, and DEBORAH DENSON, mother; and JOHN DENSON and wife, DEBORAH DENSON, individually, Plaintiffs/Appellants, VS. DR. RICHARD C. BENJAMIN, Director of Schools for the Metropolitan Nashville Public Schools; FLORENCE KIDD, A Director of Middle Schools Responsible for Walter Stokes Middle School; EVALINA CHEADLE, Principal of Walter Stokes Middle School; METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE FOR THE METROPOLITAN NASHVILLE PUBLIC SCHOOLS; and METROPOLITAN BOARD OF PUBLIC EDUCATION, Defendants/Appellee.

Appeal No. 01-A-01-9810-CV-00571 COURT OF APPEALS OF TENNESSEE, MIDDLE SECTION, AT NASHVILLE 1999 Tenn. App. LEXIS 561 August 12, 1999, Filed Two middle schools students were teasing each other in the cafeteria. As they went upstairs to change classes Chris tripped Lane by deliberately grabbing his ankle, causing Lane to fall backwards down the stairs. Lane was found at the foot of the stairs face-down and unconscious in a pool of blood. He was diagnosed as having a concussion, broken nose, and “other injuries.”

There were hall monitors at the time of the incident. The parents argued that “that the defendant’s agents were negligent in not posting an ‘educational professional’ on the stairwell during the change of classes. While this might conceivable have prevented Lane’s injury, it is self-evident that teachers cannot be everywhere at once. Moving a teacher from one location in the hallway to another would still leave a gap where students would have the opportunity, however briefly, for making mischief.

Upon the argument that Chris should have been separated from the other students, the Court held, “It is often stated that hindsight is 20/20. However, school administrators do not have the benefit of hindsight when they make decisions about the children in their care.

Of course, the law defines negligence by the standard of foreseeability, not that of hindsight.” Judgment for the defendants. __________________________________

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RICKY LEE WILSON, and KIMBERLY WILSON, as guardians and next friends of BRANDON WILSON, a minor, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, TOM MADDOX, TIMOTHY JOHN McKNIGHT and JUSTIN LEJUAN DUNNIGAN No. M2008-00327-COA-R3-CV COURT OF APPEALS OF TENNESSEE, AT NASHVILLE 2009 Tenn. App. LEXIS 25 September 9, 2008, Session January 27, 2009, Filed The minor plaintiff and his parents sued for damages for serious bodily injury resulting from an assault, and at the conclusion of the trial the Trial Judge held the defendants liable for the injuries and awarded damages. The defendants have appealed, insisting the assault was not foreseeable. We affirm the Judgment of the Trial Court.

OPINION Plaintiffs, Ricky Lee Wilson and Kimberly Wilson, as guardians and next friends of [*2] Brandon Wilson, brought this action against the Metropolitan Government and certain employees asserting claims of personal injury and Government Tort Liability Act claims.

The Complaint identified Maddox as a school bus driver, and that Brandon Wilson was riding the bus on November 4, 2005, when he was attacked by McKnight and Dunnigan, resulting in severe personal injuries. He alleged that Maddox was guilty of negligence/recklessness in failing to take action to prevent harm to Wilson.

Brandon Wilson testified that the bus was not crowded, and as a fire truck [*3] went by he said, "fire, fire", and Timothy McKnight turned around and told him to "shut the f up". He testified that McKnight then walked back to him, and Dunnigan followed. Wilson testified that he was scared, and had never spoken to the pair before. He said that McKnight began to pick on him and "put him in his place" for the next 3 or 4 minutes. He said that McKnight was cussing him and calling him names, and Wilson told him to just leave him alone and he didn't want to fight. Wilson testified that he told McKnight to go back to his seat and he did, and Wilson then turned around to talk to his friends about what had happened. Less than a minute later he saw Dunnigan walking back toward him. Wilson testified that one of his friends had his legs in the aisle and Dunnigan told him to move them, and when the friend refused, Dunnigan kicked his legs out of the

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way. Wilson testified that Dunnigan then hit him 3 times, and then got off the bus. He had not anticipated that Dunnigan was going to assault him. He than testified to the seriousness of his injuries.

Wilson testified that he had ridden Maddox's bus all semester and had seen students standing, throwing things and cussing, and [*4] that Maddox did nothing.

Robert Epley testified that he was a driver supervisor with Metro, and at the time of the incident, he was Maddox's supervisor. He testified that he had reviewed the tape in this case.

Epley testified that drivers were trained to glance at all their mirrors in a constant rotation, and that part of the rotation was to check on the students in their rearview mirror. Epley testified that Maddox should have been able to see Wilson where he was sitting on the day in question, and that if a driver noticed a student stand and move toward [*5] the back of the bus and begin picking on another student, the driver should ask the student to be seated, and if the student did not comply, the driver should stop the bus and address the situation.

The driver Tom Maddox testified that he had been a bus driver since 1990. He testified that it was not uncommon for the kids to get up and move around on the bus, to swap seats to be with friends. He testified that he did not always tell the students to sit down, and if he did, they didn't always obey. He testified that violence on the bus was rare, that there was nothing to make him think that Dunnigan would attack Wilson on the day in question, and that he had not had any prior problems with McKnight. Maddox testified that he did not see Dunnigan as being involved in the first altercation between McKnight and Wilson, and that [*7] he did see McKnight leave his seat, but he could not constantly monitor him because he had to keep his eyes on the road. Maddox testified he did not think there was a problem until he saw the finger-pointing, but he did not say anything because he was concentrating on driving the bus, and did not "think it was that big of a problem". He thought that when McKnight sat down, the problem was over.

Maddox testified that he did not hear a female student addressing him, and could not really hear what she was saying, and that he did not hear the student say anything about "they're going to bust his head".

Maddox testified that he did not see Dunnigan get up and move toward the back of the bus right before his stop, and did not see him

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back there until right about the time he hit Wilson,and that the attack came as a complete surprise to Maddox.

Maddox admitted that he saw McKnight messing with Wilson on the day in question, and that it went on for 2 or 3 minutes, and that he saw the finger-pointing, and that he heard a girl sitting behind him saying something in a raised voice. Maddox admitted that he appreciated the fact that Wilson might be in danger, but he did not say anything, and reiterated [*8] that he did not see Dunnigan get up and move toward the back of the bus, but admitted that if it took forty seconds for him to do so, he probably should have seen him in that time frame.

The Trial Court entered judgment and granted the motion for default against McKnight and Dunnigan, since they had not answered or appeared, and the Court found that Metro owed a duty of care to Wilson, and that the bus driver was supposed to enforce discipline on the bus. The Court found that the attack was foreseeable, because when McKnight and Dunnigan approached Wilsonthe first time, McKnight engaged in aggressive physical contact. The Court found that a student sitting behind Maddox warned him, and that Maddox allowed kids to stand and walk around the bus in violation of policy. The Court found the driver owed a duty to protect Wilson from foreseeable harm, but failed to restrain McKnight or Dunnigan. The Court noted that the video showed that Maddox did nothing to control the students, and thus Metro breached its duty. The Court awarded compensatory damages of $ 8,309.00 for Wilson's medical bills, and awarded damages for the significant injuries in the amount of $ 35,000.00.

Metro appealed.

Appellants argue that the attack on Wilson was not foreseeable and there was no proximate cause. Appellants argue that Tennessee follows a conservative foreseeability approach, whereby student misconduct is not to be anticipated absent proof of prior misconduct, citing Mason v. Metropolitan Government, 189 S.W.3d 217 (Tenn. Ct. App. 2005).

In this case, however, the facts are distinguished from the above cases, because there was an immediate threat, and an interval where preventative measures could have been taken before the following act of aggression. In this case there was a larger student who was seen to be threatening and assaulting a smaller, weaker student and the tape shows that this behavior went [*11] on for at least three minutes without warning or other admonishment by the bus driver. The video

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also shows that during the entire time of this altercation, Dunnigan, McKnight's known friend, is standing or sitting right behind him and "backing him up". The boys return to their seats and then shortly thereafter, both boys stand and walked again to Wilson, and spent almost a minute standing in the aisle before Dunnigan suddenly attacked Wilson and then exited the bus. The evidence demonstrates that a reasonable person would know or should have known that Wilson was in danger prior to the attack.

We affirm the Judgment of the Trial Court and assess the cost of the appeal to the Appellants.

HERSCHEL PICKENS FRANKS, P.J. ________________________________

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HOLLI THACKER HANEY, ET AL. v. BRADLEY COUNTY BOARD OF EDUCATION, ET AL. No. E2003-02531-COA-R3-CV COURT OF APPEALS OF TENNESSEE, AT KNOXVILLE 160 S.W.3d 886; 2004 Tenn. App. LEXIS 607 June 9, 2004, Argued September 20, 2004, Filed [*888] Holli Thacker Haney ("Plaintiff") had two children who attended Michigan Avenue Elementary School (the "School") inBradley County. Plaintiff's husband, Tracy Thacker ("Thacker"), was not the biological father of the oldest child, but he was the biological father of the youngest child. Thacker filed for divorce, and he and Plaintiff were in sharp disagreement over custody matters. Apparently believing he was [**2] going to lose on the custody issues, on the morning of December 12, 2000, Thacker went to the School and signed out both children. The School required Thacker to provide a written explanation as to why the children were being signed out.

Thacker wrote "Keeping Promise by Mother" and "Pay Back" as his reasons for signing out the children. School employees did not read what Thacker had written prior to allowing him to leave the premises with the children. Tragically, Thacker then murdered both young children. Plaintiff sued the Bradley County Board of Education asserting claims of negligence and negligence per se based on the School's allowing Thacker to sign out the children and leave the School with them on December 12. The Trial Court granted the Board of Education's motion for summary judgment. We affirm in part, reverse in part, and remand for further proceedings.

We have already noted that schools, teachers, and administrators have a duty to exercise ordinary care for the safety of their students. See Snider, 855 S.W.2d at 590; Roberts, 692 S.W.2d at 870. What is considered "ordinary care" is not a fixed standard and evolves over time along with the law under which it is defined. Like many other aspects of society, our nation's school systems have been forced to react to the changing times. Locker searches and policies prohibiting drugs and weapons were relatively unheard of if not nonexistent in the not-so-distant past. Now, school's are in court defending the legality of so-called zero tolerance policies. The words Columbine High School have taken on a separate meaning unto themselves, along with Oklahoma City and September 11th.

While School employees required Thacker to provide an explanation for the early dismissal, the obvious problem is that no one

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everread that explanation prior to allowing Thacker to leave with the children. It is difficult to image the rationale behind a policy which requires someone to provide an explanation before they are allowed to engage in an affirmative [**35] act, but then does not require that explanation be read before the person is allowed to [*899] engage in that act. Because the Policy requires a written explanation before any parent can sign out their child, we believe it is implicit in that Policy that the reason actually be read beforethe parent and child leave. We conclude that the Policy was not complied with when Thacker provided the required written explanation for signing out the children, but was allowed to leave without anyone from the school having read that explanation. Even if the School's failure to read Thacker's explanation was not a violation of the Policy, we nevertheless hold that the School's duty to exercise reasonable care for the safety of its students requires the School to read even a parent's explanation for signing out his or her children before they are allowed to leave. ________________________________ Bradley County case where a student wanted off the bus before his regular stop; walked to the front and asked the driver to let him off so he could go to his grandmother; the driver said no, he had to get off at his regular stop; he turned around, dropped an â&#x20AC;&#x153;Fâ&#x20AC;? bomb, went toward the back of the bus, lowered the window and jumped out to his death. _________________________ Whose Fault Is It Anyway? _________________________ IT DEPENDS!!!!! ______________________________________

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Notes _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ 236

Dealing with Difficult Situations

Steve Shields & Debra Owen, Attorneys Jackson, Shields, Yeiser & Holt

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7/8/15

In the Trenches:

Tough Choices on Sensi2ve Topics

TSBA 2015 Summer Law Ins1tute

• Introduc/on

• Case Studies:

First Amendment Rights Equal Protec7on/Due Process Fundamental Rights Harassment/Discrimina7on Fourth Amendment Rights

• Concluding Remarks

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THE CAP AND FEATHERS

WHAT WOULD YOU DO?

A) Enforce the exis/ng standards.

B) Provide an alternate ceremony.

C) Permit the requested excep/on.

D) Cancel gradua/on.

THE GRADUATION WHAT WOULD YOU DO?

A) Stay in the site because students ini/ated the decision.

B) Stay in the site and remove or cover all religious materials/icons.

C) Move the ceremony to another site.

D) Cancel gradua/on.

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THE TALENT SHOW WHAT WOULD YOU DO?

A) Disallow her par/cipa/on.

B) Require her to sing first-­‐submiQed song.

C) Permit her to sing the alternate selec/on.

D) Put a disclaimer clause in the program.

THE PIERCING WHAT WOULD YOU DO?

A) Ignore it.

B) Cover/conceal the piercing.

C) Suspend or expel the student.

D) Revise the policy on piercings.

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THE DRESS CODE WHAT WOULD YOU DO?

A) Let the student dress as desired.

B) Require the student to dress as expected.

C) Ignore clothing issues but discipline for disrup/ve behavior.

D) Implement a school uniform policy.

THE LOCKER ROOM WHAT WOULD YOU DO?

A) Require the student to use male facili/es.

B) Designate a separate and private facility for the student.

C) Provide a separate and private facility for any student who desires to use it.

D) Permit the student to use female facili/es.

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THE PARTY BUS WHAT WOULD YOU DO?

A) Search the bus and breath test the students before permiTng entry.

B) Call law enforcement.

C) Bar entry to the prom of all students on the bus.

D) Allow all students who paid to aQend the prom.

CONCLUDING REMARKS Difficult decisions must be made.

Students and employees maQer. The law maQers too.

Training is cri/cal.

Consult your aQorney(s)!

Best wishes for a successful new school year!

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Debra D. Owen

Jackson, Shields, Yeiser & Holt 262 German Oak Drive Cordova, TN 38018 901-­‐754-­‐8001 Phone 901-­‐754-­‐8524 Fax www. jsylawfirm.com

This presenta2on is for informa2onal purposes and should not be considered legal advice.

This presenta2on does not create an aGorney-­‐ client rela2onship.

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Notes _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ _____________________________________________________________________ 244

Special Education Law: What the Courts are Saying in 2015

Melinda Jacobs, Attorney-at-Law

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WHAT ARE THE COURTS SAYING ABOUT SPECIAL EDUCATION? Copyright 2015: Melinda Jacobs, Esq.1 The Law Office of Melinda Jacobs 163 Kelly Ridge Road P.O. Box 249 Townsend, Tennessee 37882 Telephone: 865-604-6340 Email: jacobslawmelinda@gmail.com Website: www.melindajacobslaw.com

I. BEHAVIOR AND DISCIPLINE 1. C.C. v. Hurst-Euless-Bedford Indep. Sch. Dist., 65 IDELR 195 (N.D. Texas 2015). The parents of a middle school student with ADHD and an SLD could not demonstrate the inappropriateness of their son's 60-day IAES placement simply by pointing out that juvenile justice authorities had decided not to prosecute him for photographing a schoolmate on the toilet. Explaining that the authorities' decision had no bearing on the student's removal, the District Court affirmed an administrative decision in the district's favor. U.S. District Judge John McBryde did not expressly decide whether the IHO exceeded his authority in determining that the student's conduct qualified as a felony under Texas law. Instead, the judge noted that the IHO's finding was not relevant to the student's removal. The key question, the judge explained, was whether the district enforced its disciplinary policies in a nondiscriminatory manner. The judge pointed out that the district conducted a manifestation determination review and found that the student's actions were unrelated to his disabilities. As such, the student was subject to the same discipline policies and procedures as the general education population. The court also observed that the student's actions appeared to be consistent with the felony of improper photography. "The Texas Education Code mandated [an IAES] placement for such conduct," Judge McBryde wrote. Because the parents did not produce any evidence showing that the district punished their son more harshly than other students who committed similar offenses, the court held that

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Note: This presentation is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the presenter is not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought. Melinda Jacobs is licensed to practice law in Tennessee. Ms. Jacobs makes no representation that she is licensed to practice law in any other state.

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the 60-day IAES placement was appropriate. The court also upheld the IHO's finding that the IEP in effect at the time of the incident offered the student FAPE. 2. Troy Sch. Dist. v. K.M., 65 IDELR 91 (E.D. Mich. 2015). The fact that a 13-yearold boy with Asperger syndrome, ADHD, and ODD had a tendency to become violent without warning did not justify a Michigan district's decision to place the student in a center-based program for children with emotional disturbances.

Relying on testimony from psychologists and autism experts, the District Court held that the student could have made educational progress in a general education setting. The court recognized that the student had multiple behavioral incidents in his mainstream classes, several of which had resulted in emergency evacuations or police intervention. However, the psychologists and autism experts testified that the student was on "high alert" because he was so fearful during the school day. "Police involvement, restraints and seclusion can be frightening for any student, but more so for a student with disabilities," U.S. District Judge Denise Page Hood wrote. According to the psychologists and autism experts, the court observed, the student was highly intelligent, learned quickly, had a strong work ethic, and wanted to be successful. In addition, the experts opined that the student needed to interact with nondisabled peers to acquire social and behavioral skills.

Although the student had disrupted the general education environment several times, the court found no fault with the experts' testimony that he could benefit from mainstream classes if he received appropriate support services. The court upheld an ALJ's determination that the district denied the student FAPE. It also affirmed an order requiring the district to provide a one-to-one psychologist with autism training as the student's "safe person," noting that such relief was clearly permissible under the IDEA. 3. Dear Colleague Letter, 64 IDELR 284 (OCR 2014), and Dear Colleague Letter, 64 IDELR 249 (OSEP/OSERS 2014). Juveniles with disabilities who are incarcerated in jails or juvenile justice facilities are protected by discipline procedures under Section 504 and Title II of the ADA and are therefore entitled to a manifestation determination prior to removal to a more restrictive setting (confinement to cell, “lockdown”) for disciplinary reasons.

4. J.F. v. New Haven Unified Sch. Dist., 64 IDELR 212 (N.D. Cal. 2014). A high school girl with LD and ADHD was expelled from her high school for her participation in an on-campus fight. The girl also attacked a principal who restrained her while attempting to break up the fight. Within four days after the fight, an IEP team conducted a manifestation determination meeting and determined that fighting was not caused by the girl’s disabilities. Three months later, a district panel recommended her expulsion from school. However, the school board later reversed this recommendation, and the student was permitted to attend a different high school within the district. During the three months of review, the district provided homebound instruction to the student. The court held that the student’s claims were moot since she had been provided instruction throughout the disciplinary process.

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5. Avila v. Spokane Sch. Dist. #81, 64 IDELR 171 (E.D. Wash. 2014). Six days of suspension over a two-year period is not a “pattern of exclusion” that triggered a manifestation determination review.

6. Endrew F. v. Douglas County Sch. Dist. RE 1, 64 IDELR 38 (D. Colo. 2014).

The school district responded appropriately to the severe behaviors of a fourthgrade boy with autism when it initiated the process to develop a behavioral intervention plan (BIP) during the IEP review process. The boy had begun to exhibit severe behavior problems that interfered with his learning, including eloping from the classroom, physical aggression, and defecating/urinating in the “calming” room. The court held that the parents were not entitled to reimbursement for a private placement since the district was in the process of developing a BIP at the time the parents unilaterally removed the child and initiated a private placement.

7. C.P. v. Krum Indep. Sch. Dist., 64 IDELR 78 (E.D. Tex. 2014). A fifth-grade girl with an emotional disturbance was permitted as a part of her BIP to leave her classroom when feeling angry. Evidence that the girl was frequently removing herself from the classroom per the BIP supported the appropriateness of the school district’s actions, and was not evidence that she had been denied FAPE. II. BULLYING/HARASSMENT 8. M.S. v. Marple Newton Sch. Dist., 64 IDELR 267 (E.D. Pa. 2015). Evidence that a male classmate was “leering” and “staring” at a 17-year-old girl and making her uncomfortable by pointing cameras at her during the school day was not sufficient to sustain the parents’ claims of disability-based harassment under Section 504/Title II. The parents alleged that the district’s failure to stop the classmate’s behavior or to remove the boy from the school caused their daughter to suffer significant anxiety and PTSD. The parents alleged that the classmate had sexually assaulted their older daughter four years earlier, and that the families became enemies as a result. The effect of the boy’s presence at school was not sufficient to trigger the school district’s obligation to prevent any association between the students.

9. G.M. v. Dry Creek Joint Elem. Sch. Dist., 64 IDELR 231 (9th Cir. 2014, unpublished). The school district’s response to disability-based bullying of a sixth-grade boy with dyslexia was sufficient and reasonable. The boy had been bullied in PE class. The district responded by speaking with the bully, separating him from the student in PE class, and suspending another student who had punched the boy in the arm. In fact, in an unpublished decision, the court affirmed the District Court’s award of $3,880 in attorney’s fees to the school district for defending a “frivolous” lawsuit.

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10. J.W. v. Johnston County Bd. of Educ., 64 IDELR 64 (E.D.N.C. 2014). A selfcontained classroom teacher joined with the parent of a “life skills” class student to allege wrongdoing by the school district. The teacher alleged that she had suffered retaliation for advocating on behalf of her students with disabilities. The parent alleged that her son’s sexual assault in a school restroom by a nondisabled peer mentor was the result of the principal’s deliberate indifference to an oversized “life skills” classroom that contained too many students for the teacher to effectively manage. The court rejected the parent’s claims, finding that the principal’s response to the alleged sexual assault was reasonable and in conformance with the law. The teacher’s speech was not constitutionally protected because it involved a personal grievance about her working conditions rather than advocacy on an issue of public concern.

11. T.K. and S.K. v. New York City Dep't of Educ., 63 IDELR 256 (E.D.N.Y. 2014).

The school district erred when it failed to address peer harassment in the IEP of a third-grade girl with a language-based learning disability. The girl had become emotionally withdrawn at school, gained 13 pounds, and had 46 absences and tardies due to her fear of being bullied by classmates. The court found that peer harassment had adversely impacted her learning, and that the district should have addressed this issue in the girl’s IEP.

III. ELIGIBILITY/CHILD FIND/EVALUATIONS 12. E.F. v. Newport Mesa Unified Sch. Dist., 115 LRP 27706 (C.D. Cal. 2015). A nonverbal child's struggles to understand basic linguistic concepts during his preschool years justified a California district's decision to forego an AT evaluation, but only for a limited time. The District Court upheld an ALJ's finding that the district's failure to evaluate the child in kindergarten required it to provide 20 sessions of compensatory AT services. The court rejected the parents' argument that the district should have conducted an AT evaluation years earlier.

Given the student's early difficulties in using the Picture Exchange Communication System, picture cards, and sentence strips, the district had no reason to believe the child was ready to start using high-tech communication devices. However, the court agreed with the ALJ that the district should have assessed the child's AT needs when his parents reported during his kindergarten year in February 2012 that he was using a tablet at home with great success. "The district did not act to have [the child] assessed until November 2012 and did not provide [him] with any AT device or service until the January 2013 IEP meeting, almost a year after the previous IEP meeting," U.S. District Judge Cormac J. Carney wrote. The court observed that the ALJ's award of 20-minute AT therapy sessions, which totaled 400 minutes of compensatory education, was sufficient to remedy the IDEA violation in light of the AT services included in subsequent IEPs. The court also affirmed the ALJ's decision.

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13. Paul T. v. South Huntington Union Free Sch. Dist., unpublished, 115 LRP 27384 (N.Y.Sup.Ct. 2015). Even if a fifth-grader developed an emotional disturbance as a result of peer bullying, a New York district had no obligation to provide the student with special education and related services. The New York Supreme Court held in an unpublished decision that the lack of impact on the student's academic performance supported the district's eligibility determination. Acting Supreme Court Justice James Hudson explained that having an emotional disturbance such as anxiety or depression will not in itself qualify a child for IDEA services; the parents also must show that the condition had an adverse impact on the child's educational performance. Although New York law does not define the term "educational performance," Justice Hudson pointed out that federal courts interpreting New York law have focused solely on academics. The court noted that the student in this case consistently earned good grades and received average to above-average scores on intelligence tests. "[A]ssuming arguendo that [the student's] mental and emotional state did rise to the level of emotional disturbance ..., the SRO was correct to find that these did not affect [the student's] educational performance," Justice Hudson wrote. Because the purported bullying had no academic impact, the court held that the student was not eligible for IDEA services. The court upheld an SRO's decision at 114 LRP 48011 that the parents were not entitled to reimbursement for the student's unilateral parochial school placement.

14. Doe v. Cape Elizabeth Sch. Dep't, 64 IDELR 272 (D. Me. 2014). A teen who made above-average grades and achieved proficiency on state-mandated tests was no longer eligible for special education and related services, despite receiving low scores on an independent assessment of academic performance. The court rejected the parent’s claim that the eligibility team should have disregarded the student’s grades and statewide testing scores in making an eligibility determination.

15. Phyllene W. v. Huntsville City Bd. of Educ., 64 IDELR 242 (N.D. Ala. 2014). An Alabama school district did not err by failing to conduct additional evaluations of a 10th-grade student with a learning disability prior to determining that she no longer met IDEA eligibility criteria. The evidence showed that the girl was proficient in grade-level academic standards and had mastered her IEP goals for the previous school year. The IDEA does not obligate school districts to conduct additional standardized assessments unless the parent requests these.

16. Jana K. v. Annville Cleona Sch. Dist., 63 IDELR 278 (M.D. Pa. 2014). The school district violated its “child find” obligation when it failed to evaluate a teenaged girl for IDEA eligibility. The court found that the district had sufficient evidence to trigger the obligation and to suspect an emotional disturbance. The girl had visited the school nurse at least 54 times to report injuries, hunger, anxiety, or a need for “moral support.” In addition, the girl’s grades had significantly declined in seventh grade. Finally, she had swallowed a metal instrument after purposefully cutting herself. The fact that her parent had failed to notify the district that the girl had been privately diagnosed with depression did

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not alter the “child find” duty. The court ordered one day of compensatory education services for each day the student had gone without appropriate services.

17. E.M. v. Pajaro Valley Unified Sch. Dist., 63 IDELR 211 (9th Cir. 2014), cert. denied, 115 LRP 1299 (U.S. 01/12/15) (No. 14-604). A student who fails to meet eligibility criteria in one IDEA category may qualify under another category, such as OHI. The 9th Circuit held that it could not tell if Congress intended to limit OHI to disabilities that did not fall within any other category. Nevertheless, the court affirmed the school district’s decision that a student diagnosed with central auditory processing disorder did not qualify for IDEA eligibility, since there was no evidence that he had limited strength, vitality, or alertness, or a chronic/acute health problem. The court further found that the district’s use of an IQ score in its LD eligibility determination was not unreasonable.

IV. FREE APPROPRIATE PUBLIC EDUCATION 18. Oconee County Sch. Dist. v. A.B., 115 lRP 29027 (M.D. Ga. 2015). he risk that a teen with a seizure disorder might not have access to medication within five minutes of the onset of a seizure convinced the U.S. District Court, Middle District of Georgia that a bus aide was needed. The court upheld an ALJ's decision at 8 GASLD 72, ordering the district to provide the teen with an appropriately trained aide. The district was also directed to reimburse the parent 50 percent of her transportation costs. The teen with "profound physical and intellectual disabilities" had a life-threatening condition that required the administration of medication once a seizure reached the five-minute mark.

However, the student's IEP did not include adequate health services on the bus.

The district contended that an aide was not needed because the teen was always within five minutes of either home or school. The parent filed for due process alleging a denial of FAPE. Because the district's director of transportation acknowledged that traffic and weather conditions could affect the provision of timely emergency treatment, the ALJ concluded that this variable presented an unacceptable risk to the student and ordered that the district provide the aide. The district appealed. Chief U.S. District Judge Clay D. Land noted that under the IDEA, school districts must provide related services, such as transportation and medical services, if those services are required to help children with disabilities receive FAPE. In ordering that the district provide an aide, Judge Land observed, the ALJ struck a balance between the district's interest in obtaining more information from the teen's neurologist and the teen's interest in receiving medication as soon as possible after his seizure reached five minutes. If the parent refused to sign a release to obtain the information, he continued, the district could still try to get the student home or to school within five minutes. Alternatively, the judge reasoned, the parent could sign a release and have the teen's physicians explain why a different course of action, such as stopping the bus and calling 911,

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would be justified. Based on the denial of FAPE, the ALJ's order for the district to amend the student's IEP to add the aide was justified, the court concluded. As to reimbursement of transportation costs, the court noted that both the parent and the district were at fault in "derailing the collaborative process." It affirmed the ALJ's decision to award the parent only 50 percent of her costs.

19. John and Maureen M. v. Cumberland Pub. Sch., 65 IDELR 231 (D.R.I. 2015).

Because the mother of a second-grader with a disability did not have a legal right to observe instruction in a special education classroom, a Rhode Island district did not violate the IDEA by denying her request to watch the class in session. The District Court reversed an IHO's finding that the district impeded the parents' opportunity to participate in the decision-making process. U.S. District Judge Mary M. Lisi pointed out that the IDEA does not give parents or their representatives the right to review current or prospective placements. See Letter to Savit, 64 IDELR 250 (OSEP 2014); and Letter to Mamas, 42 IDELR 10 (OSEP 2004). That said, OSEP has encouraged districts to give parents the opportunity to observe classrooms. The judge noted that the district attempted to do just that when it offered the mother an alternative to her request. "[The district] invited [the mother] to view the classroom -- in which [the child] was spending just forty minutes per day at the time of her request -- when no other children were in attendance," Judge Lisi wrote. The court also rejected the parents' argument that the mother's inability to observe the class in session amounted to a procedural denial of FAPE. At best, Judge Lisi noted, the IHO found that the district's denial of the mother's request impeded the parents' ability to participate in decisions about the child's program. "Even that determination ... was called into doubt by the IHO's acknowledgement that 'there is no general right to viewing the environment in the statute,'" the judge wrote.

20. Grants Pass Sch. Dist. v. Student, 65 IDELR 207 (D. Oregon 2015). Experts' testimony that an Oregon district could have used different data collection methods to get a more accurate picture of a 15-year-old boy's ESY needs did not convince a District Court that the district denied the student FAPE. The court held that the district's regression and recoupment data justified the IEP team's decision not to include ESY services in the student's IEP. The court criticized the ALJ's reliance on the experts' testimony about optimum data collection methods.

Because the collection and analysis of educational data is a question of methodology, the court explained, the district was free to use any method that allowed the student to receive FAPE. U.S. District Judge Owen M. Panner observed that in relying on the experts' opinions, the ALJ held the district to an arbitrarily high standard. "While the data collection and analysis methods proposed by [the parent's] experts might be 'better' than those employed by the District, the ALJ provides no legal authority requiring that the District employ those methods," Judge Panner wrote. The court noted that the parent did not produce any evidence showing that the district's data collection methods were inadequate. Furthermore, the data that the district collected before and after the winter and spring breaks supported the IEP team's decision that the student did

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not require ESY services to prevent "undue regression" -- the standard set forth in Oregon's special education rules. The court reversed an administrative decision at 114 LRP 32948 that required the district to provide 360 minutes of ESY services each day.

21. Grasmick v. Matanuska Susitna Borough Sch. Dist., 64 IDELR 68 (D. Alaska 2014). The conduct of the parents prevented the school district from providing appropriate educational services to a child with a severe and progressive neuromuscular disease. The district proposed homebound education services while it worked with the child’s physicians to develop an appropriate educational placement for the student. However, the parents repeatedly interfered with the provision of homebound services by refusing to allow district staff to enter their home, keeping staff waiting outside, expressing anger in front of the child during lessons, and interrupting sessions with service providers. A veteran homebound teacher testified that it was the most difficult placement he had encountered in his 30+ years of teaching. Multiple members of the child’s IEP team resigned due to the pressures of dealing with the student’s parents.

22. I.S. v. School Town of Munster, 64 IDELR 40 (N.D. Ind. 2014). A school district violated the IDEA by failing to change the educational methodology it had been using with a fifth-grade student with severe dyslexia. The district had used the Read 180 program, but this program had proven ineffective for the student over the previous school year. The court found that the Read 180 program was inappropriate for the student whose needs were in decoding and encoding, because the Read 180 program emphasized fluency. The court affirmed a hearing officer’s order that the district provide an Orton-Gillingham reading program focusing on the child’s deficit areas.

V. IEP DEVELOPMENT AND IMPLEMENTATION 23. P.G. and R.G. v. City Sch. Dist. of New York, 65 IDELR 43 (S.D.N.Y. 2015). A New York federal judge held that the evidence supported the district’s claim that an IEP team properly reviewed and considered the results of an independent educational evaluation obtained by the parent of a 9-year-old girl with learning disabilities. The parent alleged that the school psychologist appeared “shocked” and “surprised” when the parent mentioned the report during an IEP meeting.

However, the evidence showed that the team discussed recommendations in the IEE during the IEP meeting and incorporated some of the report’s recommendations into the child’s IEP. "Even if some of the [district team members] had viewed the [IEE report] for the first time at the meeting, the SRO's review of the documentary evidence demonstrates that the private evaluations were properly 'considered' as contemplated by the IDEA," Judge Katherine Polk Failla wrote.

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24. Stepp v. Midd-West Sch. Dist., 65 IDELR 46 (M.D. Pa. 2015). A school district violated the IDEA by limiting a mother’s communication with teachers without advance notice or explanation. The district impeded the mother’s right to meaningful participation in the development of her child’s IEP by informing her during an IEP meeting that she would no longer be permitted to speak directly with teachers or other staff members. The court held that district officials should have first warned the mother about excessive communication with teachers prior to implementing this limitation.

25. E.H. v. New York City Dept. of Educ., 65 IDELR 162 (2nd Cir. 2015). Adopting the IEP goals established by a private school without using the same educational methodology that school used may tip the scales in favor of the parent in her bid for tuition reimbursement. In prior proceedings, the district reimbursed the parent tuition after an IHO determined the district denied her son with autism FAPE. The district subsequently developed an IEP calling for the student to be placed in a specialized classroom within a public school. Although it adopted the IEP goals the private school had established, it did not require that the private school's "DIR/Floortime" teaching methodology be used to implement those goals. The parent filed for due process. After a hearing, the IHO ordered the district to fund the boy's tuition at the private school. An SRO reversed the IHO's decision, concluding that the IEP was designed to enable the student to make progress. The parent was unsuccessful in having a federal District Court overturn the SRO's decision, and she again appealed. The 2d U.S. Circuit Court of Appeals explained that state administrators "are generally superior to federal courts at resolving dispute[s] over an appropriate educational methodology." However, it continued, such deference is warranted only when the state administrators "weigh the evidence about proper teaching methodologies and explain their conclusion."

Here, the 2d Circuit observed, neither the IHO nor the SRO determined whether the "DIR/Floortime" methodology was necessary to implement the goals in the IEP, as they erroneously found that this issue had not been raised in the due process complaint. A remand to the District Court was therefore appropriate, the 2d Circuit held. If the SRO determines that the district denied the student FAPE by adopting the private school's goals without adopting its methodology, the three-judge panel explained, either the District Court or the SRO must then determine whether the private school is an appropriate alternative placement and "whether equitable considerations favor reimbursement."

26. T.M. v. New York City Dept. of Educ., 65 IDELR 146 (S.D.N.Y. 2015). A high school student’s mastery of basic math computations did not invalidate a math goal that referenced his ability to add, subtract, multiply, and divide. The District Court held that the student's ongoing struggles with memory, sequencing, and reading comprehension supported the IEP team's development of a goal that related specifically to multi-step word problems. The court recognized that the student had passed algebra and geometry, and was working toward a regents diploma. However, it also noted that the student's speech-language impairment had a significant impact on his understanding of written and spoken language. As

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the SRO had observed at 114 LRP 8140, requiring the student to use two of the four operations correctly when solving multi-step math problems would address the student's reading and processing difficulties as they manifested in classes with a lesser focus on writing. "The SRO found that the annual goals, 'when read together, targeted the student's identified areas of need and provided information sufficient to guide a teacher in instruction the student and measuring [his] progress,'" U.S. District Judge George B. Daniels wrote. The court also held that the district did not violate IDEA by failing to have a special education teacher on the student's IEP team. Noting that the district representative on the team had 21 years of experience as a special education teacher, the court held that any procedural defect arising from the district's failure to appoint a special education teacher to the team was harmless.

27. L.G.B. v. School Bd. of the City of Norfolk, 63 IDELR 197 (E.D. Va. 2014), adopted by, 63 IDELR 225 (E.D. Va. 2014). An IEP proposal to place a 13-yearold girl with autism in an educational program run by a state intermediate unit was appropriate even though the IEP failed to identify the specific school the girl would attend.

28. Cooper v. District of Columbia, 64 IDELR 271 (D.D.C. 2014). The school district violated the IDEA when an IEP team decided to transition a high school student with LD and ADHD from a private school back into a public school setting before it finalized his IEP. However, this procedural error was harmless because the parent was actively involved in several IEP meetings where the move to a less restrictive environment was thoroughly discussed.

29. M.S. v. Utah Sch. for the Deaf and Blind, 64 IDELR 278 (D. Utah 2014). The parents of a teen with multiple disabilities could not recover attorney’s fees for the costs of attending an IEP meeting that had been planned weeks before the parents initiated a due process hearing. In order to recover such fees, the due process hearing must be the “catalyst” for the IEP meeting.

30. Cupertino Union Sch. Dist. v. K.A., 64 IDELR 200 (N.D. Cal. 2014). The parents of a 10-year-old child with autism initiated a due process hearing after an initial IEP annual review meeting and refused to attend any further meetings to finalize their son’s IEP. The genesis of the parents’ dissatisfaction was the alleged failure of the IEP team to properly “consider” a private evaluation from a private behavioral and developmental pediatrician. At the initial IEP meeting, the pediatrician’s report was distributed to team members and briefly summarized and discussed. However, the parents believed that the team had failed to give sufficient consideration to the private report and refused to attend any further IEP meetings during the pendency of their due process hearing. After several attempts to persuade the parents to attend an IEP meeting to finalize their son’s IEP, the school district convened a meeting without the parents and completed the document. The court held that the school district’s actions were justified by the parents’ refusal to participate in the IEP development process.

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31. Lofisa S. v. State of Hawaii, Dep't of Educ., 64 IDELR 163 (D. Hawaii 2014). A parent’s subjective interpretation of a letter she received from the school district did not constitute “predetermination” of her child’s educational program. The district sent a letter to the parent of a student with disabilities, who had been enrolled in a private school, inviting her to attend an IEP meeting “if [she] wished to have [her] child receive [FAPE] in a public school.” The parent did not respond to the letter or request additional information. She initiated a lawsuit alleging that the district had “predetermined” that it would not consider funding a private school placement for her child. The court held that the parent’s “subjective” interpretation of the letter did not constitute predetermination, and found that the district routinely invited parents of private school students to attend IEP meetings where a full range of placement options was considered, including private school placements.

32. A.L. v. Jackson County Sch. Bd., 64 IDELR 173 (N.D. Fla. 2014). The court held that a Florida school district properly convened an IEP meeting without the participation of the parent of a teen with a traumatic brain injury. The evidence showed that the parent had rescheduled the IEP meeting multiple times, and that the district had attempted on multiple occasions, in multiple ways, to schedule the meeting. The court found that the district had complied with all of the procedural requirements of the IDEA, and noted the parent’s “repeated and unreasonable history of failure to attend the IEP meeting.” The court also noted that the district had properly offered to allow the parent to participate via telephone in lieu of physically attending the meeting. In addition, the parents were not entitled to demand an IEE by an evaluator who was outside the district’s geographical and monetary limits.

33. Sheils v. Pennsbury Sch. Dist., 64 IDELR 143 (E.D. Pa. 2014). A school district was sued as a result of being caught in the middle of a dispute between the divorced parents of a middle school boy with a speech/language impairment and a learning disability. The parents shared joint custody of the child and both participated in his IEP meetings. A guidance counselor made a report to a child protective services agency after the child told her that the father “slaps [his children] at his house for misbehaving.” In addition, the father disagreed with an IEP team proposal to conduct an FBA of this child (but the mother was in agreement with the proposal). The father alleged that the district had deprived him of his constitutional rights by siding with his wife on educational issues. The court found no evidence that the district had violated the father’s rights or conspired with the mother to intentionally violate his rights.

34. L.M.P. v. School Bd. of Broward County, Fla., 64 IDELR 66 (S.D. Fla. 2014).

The court refused to dismiss claims made by the parents of triplets with autism alleging that the district had illegally “predetermined” the children’s educational services by refusing to consider the provision of ABA therapy. The father alleged that he had attended more than 30 IEP meetings in the past decade and had

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requested ABA therapy at each meeting. The parents asserted that they had spent $792,945.15 for private ABA therapy for the children.

35. A.W. v. District of Columbia, 64 IDELR 149 (D.D.C. 2014). The school district failed to implement the portion of a child’s IEP that required provision of a massage brush, pencil grip, and a fidget object. However, the court found that no educational harm resulted from these omissions.

36. Blount County Bd. of Educ. v. Bowens, 63 IDELR 243 (11th Cir. 2014). The parent of a 3-year-old boy with autism met with school officials prior to her son’s third birthday to develop an IEP for preschool placement. At this meeting, district officials offered three placement options, but the parent rejected these as inappropriate. Meanwhile, the parent located and placed her son in a private preschool program. A month later, she met with the IEP team and informed district officials about the private placement. The therapist in charge of the meeting stated that the private placement was an excellent choice for the child and disbanded the meeting without discussing reimbursement. The court determined that the district had effectively acquiesced in the private placement by failing to make a formal offer of placement that was appropriate for the child.

37. Reyes v. New York City Dep't of Educ., 63 IDELR 244 (2d Cir. 2014). The school district violated the IDEA by drafting an IEP that provided for a one-to-one aide for three months with the understanding that the IEP could be amended mid-year to continue the provision of the aide. The parents of a teenager with autism objected to the limitation period in the IEP for the aide and sued to recover private tuition reimbursement. The court held that IEPs, as originally drafted, must contain all programs and services to be offered throughout the term of the IEP. In effect, the court held that judges may not consider the possibility of mid-year amendments to an IEP when deciding the appropriateness of an IEP in a reimbursement case. "If the school district were permitted to rely on the possibility of subsequent modifications to defend the IEP as originally drafted, then it could defeat any challenge to any IEP by hypothesizing about what amendments could have taken place over the course of a year," U.S. Circuit Judge Robert D. Sack wrote.

38. R.L. and S.L. v. Miami-Dade County Sch. Bd., 63 IDELR 182 (11th Cir. 2014).

The transcript of an IEP meeting supported the parents’ claim that their son’s educational program was “predetermined” by the school district. The teenage boy with Asperger syndrome and ADHD had a history of significant anxiety when placed in large public school settings. The district had provided the boy with varying amounts of homebound instruction services for a few years prior to the dispute, based on the recommendations of the boy’s psychiatrist. The parents requested that their son be placed at a small magnet school program within the district for high school, but the district representative in charge of the IEP meeting refused to discuss this option. The court described the district’s actions as an “absolute dismissal of the parents’ views.” The court held that the IDEA

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authorizes reimbursement for home-based one-to-one instructional programs when school districts have failed to offer FAPE. 39. R.B. v. New York City Dep't of Educ., 63 IDELR 74 (S.D.N.Y. 2014). Annual goals in an IEP did not have to be specifically measurable because the short-term objectives contained detailed and measurable standards for determining progress.

Moreover, the lack of baseline data in the goals was not problematic because the short-term objectives were stated in absolute terms that could be measured without baseline data.

40. M.M. and E.M. v. Lafayette Sch. Dist., 64 IDELR 31 (9th Cir. 2014). Although a California district properly considered RTI data when using a severe discrepancy model to determine whether a grade schooler had SLD, it violated the IDEA by failing to share the RTI data with the child's parents. The 9th Circuit partially reversed the District Court's ruling and remanded the case for further proceedings on the parents' right to reimbursement. By failing to share that data, the district excluded the parents from the IEP process and prevented them from making informed decisions.

VI. LEAST RESTRICTIVE ENVIRONMENT 41. H.L. v. Downingtown Area Sch. Dist., 65 IDELR 223 (3rd Cir. 2015). A Pennsylvania district's inability to identify the factors that it considered when it determined that a fourth-grader with SLDs could not receive reading and writing instruction in the general education setting undermined its claim that it complied with IDEA's LRE requirement. The 3d Circuit held in an unpublished decision that the district denied the student FAPE. The three-judge panel noted that the first step in the LRE analysis is determining whether the district can satisfactorily educate the child in the general education setting with the use of supplementary aids and services. In this case, however, the district offered little evidence to support its decision that the student required pull-out services in language arts for 90 minutes each day. The panel pointed out that the IEP and the placement notice only stated that the district considered a full-time general education placement and rejected that option as being inadequate to meet the student's needs. "Indeed, there is no indication in the record of how the District actually approached the LRE issue, and only limited evidence in the supplemented record of what options may have been available," U.S. Circuit Judge Maryanne Trump Barry wrote. The court rejected the district's argument that the lack of documentation was a procedural flaw that did not amount to a denial of FAPE. The issue was not whether the IEP and placement notice adequately recorded the placement discussion, the 3d Circuit observed, but whether that discussion occurred at all.

The court explained that it could not assess the district's placement proposal in the absence of that evidence. The 3d Circuit affirmed the District Court's ruling at 63 IDELR 254 that the district violated the LRE requirement.

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42. H.G. v. Upper Dublin Sch. Dist., 65 IDELR 123 (E.D. Pa. 2015). Testimony that a sixth-grader with Fragile X syndrome had difficulty understanding even the most basic work in reading and math supported a Pennsylvania district's proposal to place the student in a special education setting for both subjects. The District Court ordered the district to immediately implement the January 2012 IEP. In determining the student's LRE, the court considered two factors: 1) whether the district could educate the student in a general education classroom with supplementary aids and services; and 2) if not, whether the district mainstreamed the student to the maximum extent appropriate. With regard to the first factor, the court noted that the student's teachers attempted various modifications, accommodations, aids, and supports, many of which were unsuccessful. The math teacher testified that the student struggled with the most basic concepts, and frequently became so frustrated that he had to leave the classroom. According to the language arts teacher, the student would hold his books upside down and take scribbled notes to feel like he was part of the class. "Even [the parent's] own witnesses underscore how [the student] would benefit in a segregated setting," U.S. District Judge Nitzo I. Quiñones Alejandro wrote, citing an independent evaluator's recommendation for a smaller, more supportive classroom environment. The court also pointed out that the student engaged in loud and disruptive behaviors such as calling out and flapping his hands. In light of those factors, the court held that a general education placement was not appropriate for math or science. However, the fact that the district offered a general education placement for the remainder of the day convinced the court that the district mainstreamed the student to the maximum extent appropriate.

43. M.A. v. Jersey City Bd. of Educ., 64 IDELR 196 (3d Cir. 2014, unpublished). The IEP for an elementary school boy with autism did not have to specify the child’s classroom assignment so long as the IEP described the program and services the child would receive.

44. S.P. v. Fairview Sch. Dist., 64 IDELR 99 (W.D. Pa. 2014). The LRE for a teen with refractory migraine headaches was a full-time “cyber school” program at home. Prior to recommending this placement, the district attempted several modifications of the boy’s high school program, including reduced academic requirements, a modified school day/schedule, and completion of some courses online. The cyber school placement was made only after the boy became unable to attend school for even a part of the school day. Moreover, the boy was permitted to participate in extracurricular activities and attend classes at school when he was well enough to do so. The court dismissed the parents’ claims that the district had discriminated against the student based on his disability.

45. B.E.L. v. State of Hawaii, Dep't of Educ., 64 IDELR 130 (D. Hawaii 2014). The LRE for a second-grade boy with learning disabilities was placement in a special education classroom for reading and math instruction. The district had unsuccessfully attempted classroom modifications, individualized instruction in

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the general education class, nonverbal reminders, modified assignments, and extra time.

46. K.S. v. Strongsville City Sch. Dist., 63 IDELR 125 (N.D. Ohio 2014). An Ohio school district provided FAPE in the LRE for an elementary school boy with autism by providing most of his instruction in a general education classroom with as-needed 5- to 10-minute sensory breaks in a glass-enclosed vestibule near the classroom. The court rejected the parent’s allegation that the district was forcing the child to sit in a “glass house” separated from his peers for instruction.

47. T.M. v. Cornwall Cent. Sch. Dist., 63 IDELR 31 (2d Cir. 2014). The fact that a New York district did not offer a summer program for nondisabled students did not excuse its decision to place a 6-year-old boy with autism in a half-day ESY program for children with disabilities. Holding that the LRE requirement applies equally to ESY and school year placements, the 2d Circuit vacated a ruling in the district's favor at 59 IDELR 286 and remanded the case for further proceedings.

VII.

MONEY DAMAGES AND LIABILITY

48. T.R. v. Humboldt Co. Office of Educ., 115 LRP 20142 (N.D. Cal. 2015).

Allegations that a county ED had information about a deaf teenager's need for intensive psychiatric interventions but failed to provide any mental health services during his nine-month placement in juvenile hall supported the grandparents' claim that the ED acted with deliberate indifference. The District Court denied the ED's motion to dismiss the grandparents' Section 504 and Title II claims. The ED argued that the juvenile court had sole authority to decide issues relating to the student's custody during his incarceration. As such, the ED contended, it could not be responsible for failing to make decisions about his placement or his need for mental health services. The court disagreed. Under California law, the court observed, the ED for the county in which a juvenile facility is located is responsible for providing FAPE to students with disabilities during their detention. Because the juvenile facility was within the county's borders, the ED was responsible for ensuring the student received FAPE. U.S. Magistrate Judge Nandor J. Vadas noted that the grandparents' complaint raised questions as to whether the ED disregarded information about the student's educational needs.

Specifically, the grandparents alleged that a nationally recognized expert for deaf children evaluated the student and found him to be in need of intensive psychiatric services and a therapeutic placement in a locked residential facility.

Without deciding whether the ED failed to consider that information as the grandparents claimed, the court held that the grandparents sufficiently pleaded claims for disability discrimination. The court also denied the ED's motion to dismiss the grandparents' Section 1983 claims, which alleged violations of the student's 14th Amendment rights.

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49. Lebrón and Portales v. Commonwealth of Puerto Rico, 64 IDELR 95 (1st Cir. 2014). The parents of an elementary school boy with Asperger syndrome sought to recover more than $6 million in damages from the Puerto Rico Department of Education for refusing to allow them to file a complaint against a private school.

The court agreed that the fact that a private school receives some federal funding does not obligate the state to supervise the school.

50. Chambers v. School Dist. of Philadelphia Bd. of Educ., 64 IDELR 132 (E.D. Pa. 2014). The court allowed the parents of a 29-year-old young woman with severe disabilities to pursue a damages claim against the school district. The family had previously been awarded 3,180 hours of compensatory education services and the creation of a $209,000 trust for educational services. The family now seeks money damages for emotional distress and the district’s acts of discrimination.

51. Reid v. Prince George’s County Bd. of Educ., 64 IDELR 142 (D. Md. 2014). A high school girl with PTSD, ADHD, and ED was severely injured and suffered permanent brain damage after she leapt from a moving school bus. The girl had a long history of emotional disturbance and volatile outbursts, including attempts to elope from the bus. She evaded the bus driver and aide and escaped from the back emergency door exit while the bus was moving, striking her head on the pavement. The court refused to dismiss the parents’ suit for money damages based on Section 1983, Section 504, and Title II of the ADA. The parents alleged that the district failed to properly supervise and train the bus driver and aide and to adequately manage the girl’s behavioral outbursts.

52. C.S. v. Platte Canyon Sch. Dist. No. 1, 64 IDELR 110 (D. Colo. 2014). The parents of a student with cerebral palsy alleged that their son’s special education teacher abused the boy by “dumping” him out of his wheelchair rather than “tilting” him to stand; punishing him by isolating him from the rest of the class and forcing him to face the wall in a corner of the classroom; pushing the boy’s head and holding it into his desk; and calling the student names, ridiculing him for failures, and mocking him for smelling bad. The court dismissed the claims against the district and the principal because the parents did not bring these complaints to the district’s notice until after the school year. District officials cannot be held liable for actions of staff for which they are unaware.

53. Conway v. Board of Educ. of Northport-East Northport Sch. Dist., 63 IDELR 289 (E.D.N.Y. 2014). A high school student diagnosed with anxiety and depression lost consciousness due to a panic attack during the first week of the school year.

The student was placed on homebound instruction for the remainder of the school year without having any evaluation by the district of his mental health needs.

This action could constitute “deliberate indifference” and disability-based discrimination.

54. Williams v. Weatherstone, 63 IDELR 109 (N.Y. Ct. App. 2014). A state appeals court held that the school district was not obligated to protect a special education

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student from harm before she boarded her school bus. The sixth-grade student with ADHD and a mild intellectual impairment was hit by a car when she walked across a busy highway trying to catch the bus as it passed her house going the opposite direction. The court recognized that the studentâ&#x20AC;&#x2122;s IEP provided for bus transportation, but this did not include monitoring or supervision at the bus stop.

VIII. PRIVATE SCHOOL PLACEMENT 55. S.E. v. New York City Dept. of Educ., 115 LRP 29457 (S.D.N.Y. 2015). The mother of a 9-year-old girl with significant cognitive impairments could not use an assistant principal's alleged statements during a site visit to recover the $36,000 cost of her daughter's unilateral private placement. Citing the parent's failure to provide "hard evidence" of the school's inability to implement the student's IEP, the District Court upheld an administrative decision in the district's favor found at 114 LRP 46691. Chief U.S. District Judge Loretta A. Preska observed that a parent may be entitled to private school costs if she can prove that the assigned school is factually incapable of implementing the student's IEP. However, the judge held that the AP's alleged statements about the student's proposed program did not meet that high standard of proof. Judge Preska distinguished the parent's case from D.C. v. New York City Department of Education, 61 IDELR 25 (S.D.N.Y. 2013), in which the District Court held that the presence of fish in the cafeteria of a child's proposed placement showed that the school was not a "seafood free" environment required by his IEP. "The parent's testimony, even if accepted as unchallenged, merely evidences [the assistant principal's] belief that, given [the student's] personality and, critically, what [the parent] 'wanted [her] to achieve,' perhaps other placements were more appropriate," Judge Preska wrote.

Furthermore, the judge pointed out that the AP had never met the student or review her IEP. Give 56. Leggett v. District of Columbia, 115 LRP 30253 (D.D.C. 2015). The fact that a high school student with SLDs, anxiety, and depression would have gone without special education for the first several weeks of the 2012-13 school year due to the district's delay in developing an initial IEP convinced the Circuit Court that the student's unilateral boarding school placement was educationally necessary. The Circuit Court held that the student's progress demonstrated the appropriateness of the residential placement and entitled her mother to reimbursement. The threejudge panel noted that this was not a case in which a parent places a child in a residential facility to address medical, emotional, or behavioral issues that are entirely separate from the child's learning. Rather, the purpose of the student's placement was "primarily educational." The court pointed out that the student attended the boarding school to receive the small classes, individualized tutoring, and other services that her IEP team and two psychologists identified as being educationally necessary. More importantly, the court observed that the boarding school was the only placement over the dozens considered that was capable of meeting the student's needs. The panel criticized the district's argument that the

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public school IEP -- developed one month into the school year -- provided the required educational benefits. "[H]ad [the district] offered [the student] a spot in a less expensive day school in the district -- or just identified one early enough in the process -- the [boarding school] placement may not have been 'necessary,'" U.S. Circuit Judge David S. Tatel wrote for the panel. The court observed that the boarding school provided the student with a "basic floor of opportunity," as demonstrated by the significant improvement in her grades. However, the court acknowledged that the parent might not be entitled to recover the cost of academic activities unrelated to the student's education, such as horseback riding.

The Circuit Court reversed a District Court ruling in the district's favor, reported at 62 IDELR 236, and remanded the case for a determination of which expenses were educationally necessary.

57. Fort Bend Indep. Sch. Dist. v. Douglas A., 65 IDELR 1 (5th Cir. 2015). Evidence that the goal of a private mental health facility was to treat children with reactive attachment disorder helped a school district avoid the $7,000 per month cost of the placement. The court held that the IDEA only requires school districts to fund residential placements that are primarily for educational, not mental health, purposes.

58. Sam K. v. State of Hawaii Dept. of Educ., 65 IDELR 222 (9th Cir. 2015). The fact that the Hawaii ED did not propose a placement for a teenager with disabilities until well into the second semester of the 2010-11 school year helped the parents to recover a full year's worth of private school costs. The 9th Circuit held that ED's tacit approval of the student's ongoing private placement made Hawaii's 180-day limitations period for reimbursement actions inapplicable. The decision turned on the distinction between unilateral and bilateral placements. Under Hawaii law, the court observed, parents have only 180 days to seek reimbursement for a private placement made without ED's agreement or consent.

The court recognized that ED did not explicitly consent to the student's continued private school placement, which ED had funded through the end of the 2009-10 year as part of a FAPE settlement. However, the court pointed out that an agreement may be tacit when a party remains silent or fails to act. The three-judge panel held that ED gave its unspoken consent for the placement when it failed to develop an IEP before the start of the school year. "The [ED] had not proposed anything else, and it presumably did not intend that [the student] would receive no educational services in the meantime," U.S. Circuit Judge Richard R. Clifton wrote for the majority. Because the placement was not "unilateral," the court explained, the parents' October 2011 request for a due process hearing was timely.

59. M.C. v. Starr, 64 IDELR 273 (D. Md. 2014). A 15-year-old girl with ADHD, anxiety disorder, mood disorder, auditory processing disorder, Tourette syndrome, and Pediatric Autoimmune Neuropsychiatric Disorders Associated with Streptococcus (PANDAS) was psychiatrically hospitalized due to her

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deteriorating condition at home and at school. After her discharge, her parents unilaterally placed her in a therapeutic boarding school in Connecticut. The IEP team determined that the girl could be appropriately educated in a day treatment program and refused to pay for the out-of-state residential placement. The parents sought reimbursement of $119,000 for the residential placement. The court held that the girl’s educational needs could be met in a day treatment facility.

60. F.K. v. State of Hawaii, Dep't of Educ., 64 IDELR 194 (9th Cir. 2014, unpublished). The state could not be held liable for damages due to a “stay-put” violation when the private school continued to provide special education services to a 14-year-old girl with autism despite the interruption in funding.

61. Pinto v. District of Columbia, 64 IDELR 103 (D.D.C. 2014). The parents of a student with learning disabilities could not seek private school reimbursement unless they proved that the private school was “appropriate” in addition to proving that the school district failed to provide FAPE. 62. Gore v. District of Columbia, 64 IDELR 41 (D.D.C. 2014). A student’s guardian was not entitled to participate in the decision-making process of transferring a teen with learning disabilities from one private special education school to another. This was a change in location only, and did not qualify as a “change of placement” as contemplated by the IDEA. 63. Hannah L. v. Downingtown Area Sch. Dist., 63 IDELR 254 (E.D. Pa. 2014). A 12-year-old girl with learning disabilities in reading fluency, comprehension, and written language was removed from the district and placed in a private school by her parents before receiving any special education services. After one year at the private school, the district was asked to reevaluate the girl and proposed an IEP. The district recommended that the student receive instruction in a general education classroom for five hours per day, and one hour per day in a resource class for language arts instruction. The IEP’s LRE section stated that the team considered “a regular education environment with supplementary aids and services,” but rejected this option because “it would not meet Hannah’s need for specifically designed instruction at this time.” The parents rejected the proposed IEP and sought public funding and reimbursement for her private school placement. The court affirmed the hearing officer’s decision in the school district’s favor. The court found that the district’s proposed IEP was deficient because it failed to sufficiently explain why Hannah could not be served in general education with supplementary aids and services. However, the court refused to award private school reimbursement because the parents failed to prove that the private school program was “appropriate.”

64. K.S. and M.S. v. Summit Bd. of Educ., 63 IDELR 253 (D.N.J. 2014). The father of a teenage girl with mental health issues was also the chairman of the school board. The girl was unilaterally placed by her parents in a residential facility in Utah for treatment. In anticipation of her discharge from the Utah facility, the

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school district convened an IEP team and recommended placement at a private day school program. At the time, the parents indicated their agreement with the proposed IEP. However, after their daughter returned from Utah, the parents transferred her to an all-girls therapeutic boarding school instead of the agreedupon day program. The court rejected the parents' suit for reimbursement because they had failed to provide notice of their intent to privately place the girl until one week after her placement at the therapeutic boarding school.

65. N.B. v. State of Hawaii, Dep't of Educ., 63 IDELR 216 (D. Hawaii 2014). The parent of a 7-year-old child with autism called the school district while the family was in the process of relocating from Texas to Hawaii. In a telephone conversation with the student services coordinator, the parent was told that the Hawaii district would conduct its own assessments of the child upon enrollment.

The district official did not expressly state that the district would implement the child’s Texas IEP pending completion of these assessments. Based on this conversation, the parent refused to enroll the child in public school and made a unilateral private school placement. The court held that the district was not responsible for FAPE until the child was enrolled in the district.

66. E.M. v. New York City Dep't of Educ., 63 IDELR 181 (2d Cir. 2014). In a case of first impression, the court held that the parent of a 6-year-old girl with autism had standing to sue for tuition reimbursement for private school even though she had not paid a dime of the $85,000 tuition. "[I]ndeed, there is nothing in the record to suggest that, if [the parent's] IDEA claim proves fruitless, she is automatically relieved of her contractual promise to pay tuition," U.S. Circuit Judge Susan L. Carney wrote.

67. Ward v. Board of Educ. of the Enlarged City Sch. Dist. of Middletown, New York, 63 IDELR 121 (2d Cir. 2014, unpublished). The parents of a teenage girl with a learning disability in math could not recover the costs of a residential program.

The evidence showed that the residential program did not offer specifically designed instruction to meet the girl’s disability-related needs. Although the girl had a disability in math, the residential program placed her in lower-level math classes despite her successful performance in a more challenging math class in public school the previous year with special education support.

68. C.U. and N.U. v. New York City Dep't of Educ., 63 IDELR 126 (S.D.N.Y 2014).

The school district violated the parents’ right to make an informed decision about the placement offered by the district. The district did not provide the parents of a teenager with autism notice of the school in which their child would be placed until 16 days prior to the start of the school year. The parents attempted to contact the school to ensure that it could offer a quiet place for the girl to recover from seizures and an on-site nurse to administer medications but were unable to speak to a school official or to leave a message. The district also failed to respond to any of the letters sent by the parents to inquire about this situation. The court ruled that the parents were entitled to access to information about their daughter’s

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proposed placement, and the district’s lack of response supported an award of tuition reimbursement.

IX. PROCEDURAL ISSUES 69. Meridian Joint Sch. Dist. No. 2 v. D.A., 115 lRP 29286 (9th Cir. 2015). An Idaho district avoided liability for attorney's fees not because of the timing of the parents' request, but because of its determination that their teenage son was ineligible for IDEA services. The 9th Circuit held that only the parents of "a child with a disability," as that term is defined in the IDEA, may use the statute's feeshifting provision to recover legal expenses. The three-judge panel relied heavily on the 5th U.S. Circuit Court of Appeals' ruling in T.B. v. Bryan Independent School District, 55 IDELR 244 (5th Cir. 2010). In that case, the 5th Circuit noted that the plain language of the IDEA permits a court to award attorney's fees "to a prevailing party who is the parent of a child with a disability." The T.B. court interpreted that language to mean that fee awards are available only to the parents of a student found eligible for IDEA services. The 9th Circuit acknowledged the possibility that a district might become adversarial early in the identification or evaluation process if the parents did not have the ability to recover legal expenses.

However, the court explained that a plain-language interpretation of the feeshifting provision would not thwart the statute's purposes. "Limiting the award of attorneys' fees against school districts to instances where the child has been determined to need special education services is not inconsistent with [the provision of FAPE]," U.S. Circuit Judge Consuelo M. Callahan wrote. "Rather, it preserves public resources for those [children with disabilities] most in need of services." The 9th Circuit also held that the fee claims are independent actions under the IDEA, and therefore are not subject to the relevant statute of limitations for administrative appeals. It reversed the District Court's award of attorney's fees to the parents, and vacated a May 2013 decision that enjoined the student's high school graduation while his eligibility was in dispute. The 9th Circuit affirmed the District Court's ruling at 60 IDELR 282 that the district's failure to reevaluate the student after his September 2010 release from a juvenile detention facility required it to fund an IEE. 70. T.P. v. Bryan County Sch. Dist., 115 LRP 29136 (11th Cir. 2015). Without addressing whether the parents of a second-grader with autism only had two years to seek an IEE at public expense, the 11th U.S. Circuit Court of Appeals barred their complaint challenging a District Court's ruling on that issue. Citing the futility of seeking an independent opinion on the adequacy of a three-year-old evaluation, a three-judge panel held that the parents' appeal was moot. The Georgia district initially evaluated the child in September 2010. In November 2012, the parents asked the district to pay for an IEE, contending that the 2010 evaluation was flawed. The district declined, asserting that the IDEA's two-year statute of limitations barred their request. The parents filed a due process complaint on Jan. 5, 2013, seeking an order compelling the district to pay for an

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IEE. An ALJ ruled that "the Family's request for an IEE at public expense was barred by the IDEA's statute of limitations." The District Court affirmed. On appeal to the 11th Circuit, the parents argued that the District Court erred in holding that the right to request an IEE is limited two years. The 11th Circuit declined to address the merits of that claim, holding that the issue was moot in light of the fact that the 2010 evaluation was now more than three years old. The purpose of an IEE, the 11th Circuit noted, is to furnish parents independent expertise they can use to decide whether to oppose or accept an evaluation conducted by a district. But in this case, the 11th Circuit noted, the evaluation the parents opposed was outdated and a triennial evaluation was due. "Regardless of the merits of Parents' case, ordering an IEE at public expense in these circumstances would be futile," the three-judge panel wrote. Because such an order would not facilitate the parents' meaningful participation, the parents lacked an interest in the outcome of the controversy. The court vacated the District Court's judgment and remanded the case, with instructions to dismiss the complaint for lack of subject-matter jurisdiction.

71. G.M. v. Massapequa Union Free Sch. Dist., 115 LRP 29241 (E.D.N.Y. 2015). A parent's claim that a New York district failed to provide preferential seating, modified assignments, and other services to address an elementary school student's ADHD prevented her from suing the district under Title II and Section 1983. Holding that the parent's allegations were "inextricably intertwined" with the student's right to FAPE, the District Court ruled that her failure to exhaust her administrative remedies under the IDEA barred her federal claims. The decision turned in large part on the phrasing of the parent's complaint. Although the parent sought relief for her son's seclusion in a storage room in the back of his classroom, as well as his "discriminatory" removal from student council and the district's purported failure to address peer bullying, the court pointed out that the complaint tied those allegations to the student's education. For example, the court explained, the allegations relating to the student's seclusion effectively sought relief for the district's failure to accommodate the student's ADHD. The district's purported failure to provide additional adult supervision, which supposedly resulted in peer bullying, similarly addressed an impediment to FAPE. U.S. District Judge Joanna Seybert further noted that the complaint accused the district of classifying the student's disability-related fidgeting and tics as behavioral issues in order to avoid providing appropriate services. "These allegations make clear that [the parent's] suit challenges the adequacy of the accommodations provided to a [student with a disability] and -- perhaps particularly in [the student's] case -- the often unfortunate and disconcerting consequences thereof," Judge Seybert wrote. The court dismissed the parent's Title II and Section 1983 claims for lack of jurisdiction, and dismissed her remaining state law claims with leave to refile in the appropriate court.

72. Doe v. East Lyme Bd. of Educ., 115 LRP 28270 (2nd Cir. 2015). A Connecticut district could not prevent a mother from recovering the full cost of a grade school

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studentâ&#x20AC;&#x2122;s stay-put placement merely by alleging that the mother was only entitled to reimbursement for the services she paid for. Ruling that a District Court erred when it awarded the mother "less than the full value of [the child's] stay-put services," the 2d U.S. Circuit Court of Appeals reversed part of the District Court's judgment reported at 59 IDELR 249. After the mother rejected the student's proposed 2009-10 IEP, the district refused to continue the student's speech therapy and OT, which were required by the last-implemented IEP. The mother sued the district under the IDEA's stay-put provision. The District Court ruled in the mother's favor, but held that the district only had to reimburse her for the stay-put services Doe v. East Lyme Bd. of Educ she paid for upfront. Both parties appealed. The 2d Circuit explained that, under the IDEA, courts have the authority to "grant such relief as [they] determine appropriate, ... including reimbursement of tuition [and] compensatory education." Here, the three-judge appellate panel opined that while the District Court correctly determined that the district violated the student's stay-put rights, "it abused its discretion by limiting the award of relief to [the mother's] out-of-pocket expenses instead of awarding the full value of services that the [district] should have provided." It noted that the District Court calculated the mother's reimbursement "in a way that would undermine the stay-put provision by giving the [district] an incentive to ignore [its] stay-put obligation." Specifically, the 2d Circuit observed that under the District Court's line of reasoning, a district would have to pay "less than what was needed for the child's benefit" if the parent could not afford to finance all or any of the student's stay-put services. Such an arrangement would make the district's stay-put obligation contingent on the means of the child's family, the court remarked. Although the district argued that reimbursement is a remedy limited to "what has been paid," the court commented that the district could provide the student with compensatory services to "fill in the gap of required services that the parent did not fund." Accordingly, it remanded the case back to the District Court with instructions to recalculate the mother's award.

73. M.B. v. Islip Sch. Dist., 115 LRP 26472 (E.D.N.Y. 2015). A New York district's alleged failure to provide a teenager's parents with notice of their procedural safeguards under the IDEA toppled its motion to dismiss the parents' Section 504 and Title II claims on exhaustion grounds. The District Court held that the purported lack of notice excused the parents' failure to exhaust their administrative remedies. U.S. District Judge Sandra J. Feuerstein observed that the parents' complaint described how the district's handling of the student's behavioral issues and reported bullying by peers impeded the student's education.

As such, the court rejected the parents' argument that the IDEA did not offer any relief for the harm alleged. However, the parents also contended that the district's failure to provide them with information about the IDEA's administrative process made exhaustion futile. Explaining that it had to accept the parents' allegations as true when ruling on a motion to dismiss, the court agreed to excuse the parents' noncompliance with the exhaustion requirement. "Based upon the allegations in the [complaint] ..., administrative remedies were not available to [the parents] because they were 'never informed of their due process rights or procedure for

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which to challenge the IEP' ... and therefore 'could not be required to exhaust their administrative remedies," Judge Feuerstein wrote. The court dismissed the parents' Section 504 and Title II claims only to the extent to which they sought money damages from individual district employees.

74. Fry v. Napoleon Community Schs., 65 IDELR 221 (6th Cir. 2015). Reasoning that a student's wish for greater independence qualified as an educational goal, the 6th Circuit held that issues relating to the presence of the student's service dog were "crucially linked" to her education. The 6th Circuit ruled that the parents could not pursue Section 504 or Title II claims against the student's former district until they exhausted their administrative remedies under IDEA. The two-judge majority noted that the exhaustion requirement applies if IDEA's administrative procedures can provide some form of relief or if the claims relate to the provision of FAPE. In this case, the court observed, the parents clearly were disputing the appropriateness of the student's IDEA services. Specifically, the parents argued that the dog's presence allowed the student to be more independent so that she would not have to rely on a one-to-one aide for tasks such as using the toilet and retrieving dropped items. They also maintained that the student needed the dog in school so that she could form a stronger bond with the animal and feel more confident. The court explained that the parents' allegations brought the claim squarely within IDEA's scope. "Developing a bond with [the dog] that allows [the student] to function more independently outside the classroom is an educational goal, just as learning to read Braille or learning to operate an automated wheelchair would be," U.S. Circuit Judge John M. Rogers wrote for the majority.

The 6th Circuit affirmed the District Court's ruling at 62 IDELR 201 that the parents' failure to exhaust their administrative remedies required dismissal of their Section 504 and Title II claims. U.S. Circuit Judge Martha Craig Daughtrey dissented from the majority's decision, opining that the student's wish to use a service dog on campus had no relationship to her education.

75. Turton v. Virginia Dep't of Educ., 64 IDELR 305 (E.D. Va. 2015). The attorneys for the parents of a group of students with disabilities filed a complaint for sanctions against a school attorney. The complaint accused the school attorney of violating the rights of children with disabilities by attending IEP meetings and advising his clients to violate federal and state special education laws, including advising LEAs to convene IEP meetings without parents present; bullying and harassing parents in IEP meetings; advising LEAs to disregard the opinions of a student’s treating physician; and conspiring with LEAs to deny FAPE in the LRE. The court awarded the school attorney sanctions against the parents’ attorneys for filing a claim without legal support.

76. Oakstone Community Sch. v. Williams, 115 LRP 26026 (6th Cir. 2015). The steps that a charter school's attorney took when she realized that a District Court's filing system had removed all electronic redactions from a student's education record helped her to avoid paying $7,500 in sanctions. The 6th Circuit held in an unpublished decision that the one-time filing did not amount to objectively

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unreasonable conduct. The majority noted that, at the time of the filing, the parties disputed whether the parent's attempt to publicize the dispute made the administrative record a public document. Although the District Court ultimately held at 58 IDELR 256 that the student's education record was confidential, the 6th Circuit pointed out that neither party knew at the time of the attorney's filing whether FERPA applied to the case. The 6th Circuit explained that the District Court could not sanction the attorney for conduct that predated its FERPA ruling.

As for the District Court's ruling that the attorney "repeatedly" filed un-redacted confidential documents, the 6th Circuit observed that the attorney only filed one set of confidential documents in an un-redacted form. Furthermore, the redaction error was the result of technical problems with the court's electronic filing system.

"A single filing of multiple exhibits does not amount to 'repeated' filings," U.S. Circuit Judge Gilbert S. Merritt wrote for the majority. The 6th Circuit reversed the District Court order requiring the attorney to pay sanctions. U.S. Circuit Judge Helene N. White dissented from the majority's decision in part. Even if the attorney filed the un-redacted education record in error, Judge White argued, her redaction of subsequent documents in accordance with Fed. R. Civ. P. 5.2 (as opposed to the stricter FERPA standards) justified the District Court's imposition of sanctions.

77. Foster v. City of Chicago, 65 IDELR 161 (7th Cir. 2015). The fact that numerous Circuit Courts have interpreted "compensatory education" to include reimbursement for private services helped to revive a parent's IDEA claim against an Illinois district and charter school. The 7th Circuit held in an unpublished decision that the parent's failure to request "reimbursement" in her due process complaint did not preclude her from challenging an IHO's ruling. The three-judge panel rejected the District Court's holding at 63 IDELR 280 that the parent could not be "aggrieved by" the IHO's finding because she never sought repayment for the private speech-language services she obtained while her multiple requests for IDEA evaluations were pending. Although the parent did not use the word "reimbursement" in her petition, she requested several forms of compensatory education, including speech-language services. "The hearing officer's failure to explicitly order the [district and the school] to also pay for the 25 prior sessions -even though he calculated an appropriate compensatory-education period to begin in March 2012 -- does not mean that [the parent] did not intend such reimbursement to be part of the requested relief," the panel wrote. The 7th Circuit also pointed out that several Circuit Courts have interpreted "compensatory education" to include reimbursement for out-of-pocket educational expenses.

Because the parent sufficiently alleged a claim for reimbursement before the IHO, she was entitled to seek reimbursement on appeal. The 7th Circuit vacated the District Court's ruling in part and remanded the case for further proceedings. It affirmed the District Court's holding that the non-attorney parent could not bring IDEA claims on her own behalf without hiring an attorney.

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78. Hoskins v. Cumberland County Bd. of Educ., 64 IDELR 234 (M.D. Tenn. 2014).

The federal court dismissed all claims against the school district, the police officer, and several administrators by the parents of an 8-year-old boy who was handcuffed by a police officer for 45 minutes after he became physically aggressive toward teachers at his school. At the time, the student was 55.5 inches tall and weighed 112 pounds. At the time of the incident, the student had not been determined to be an individual with a disability under Section 504 or the IDEA. The parents sued, alleging that the police officer violated the boy’s constitutional right to be free from unreasonable seizures, and that the school district violated Section 504 by failing to recommend a 504 plan. They sought compensatory damages for physical and emotional pain and suffering, punitive damages, and related costs and fees. The court held that the police officer violated the child’s Fourth Amendment rights, but that he was entitled to qualified immunity from suit due to the parent’s failure to prove otherwise. The complaints against the school district and school officials were dismissed because the child was not “disabled” at the time of the incident, and because the parents had failed to exhaust their administrative remedies.

79. Blackman v. District of Columbia, 64 IDELR 169 (D.D.C. 2014). A school attorney may suffer sanctions after having the police remove a parent’s attorney from an IEP meeting. After the IEP meeting, a district official allegedly contacted the student and offered to buy the student a tablet PC if he would attend a followup IEP meeting without his attorney.

80. South Kingstown Sch. Comm. v. Joanna S., 64 IDELR 191 (1st Cir. 2014). A settlement agreement required a Rhode Island school district to conduct four specific evaluations of a 13-year-old boy with severe anxiety. Six months after signing the settlement agreement, the parent requested a new psycho-educational assessment. The court agreed with the school district that the terms of the settlement agreement barred the parent from seeking additional publicly funded evaluations until the student’s circumstances changed.

81. Cupertino Union Sch. Dist. v. K.A., 64 IDELR 275 (N.D. Cal. 2014). The medical excuses submitted by a parent were insufficient to excuse a 10-year-old boy’s seizure-related absences, and the school district did not violate the IDEA by subsequently refusing the parent’s request for home instruction based on the absences. State law prohibits home instruction without a medical report that identifies a student’s diagnosed condition, certifies that the severity of the condition precludes instruction in a less restrictive environment, and includes a projected date for return to school. Neither of the notes provided by the parents conformed to these requirements. Therefore, the IEP team could not recommend home instruction for the child.

82. R.K. and D.K. v. Clifton Bd. of Educ., 64 IDELR 96 (3d Cir. 2014, unpublished).

The parents of a 3-year-old boy with autism were not entitled to access an independent consultant’s report reviewing his preschool program as a whole. The

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consultant’s report did not include any child-specific information, and she had never met the child or reviewed any documents pertaining to him. Therefore, the consultant’s report was not an “educational record” that the parents had a right to examine under the IDEA. 83. L.H. v. Hamilton County Dep't of Educ., 64 IDELR 207 (E.D. Tenn. 2014). The federal court allowed the parents of a student with disabilities to amend their complaint by adding the Tennessee Department of Education as a defendant. An earlier decision from the same court held that the TDOE could be jointly sued and found liable for an LEA’s failure to provide FAPE to a student with disabilities.

84. L.O. v. East Allen County Sch. Corp., 64 IDELR 147 (N.D. Ind. 2014). The federal District Court overturned the decision of a hearing officer because his award of compensatory education to a student with OCD, ADHD, and Tourette syndrome was flatly contradicted by the evidence cited in his amended opinion.

85. B.G. v. Ocean City Bd. of Educ., 64 IDELR 105 (D.N.J. 2014). A hearing officer was ordered to conduct a “proper” due process hearing that provided the student with notice of the witnesses to be called and an opportunity to present evidence regarding the alleged inappropriateness of her IEP. The hearing officer had previously approved the student’s graduation, citing her noncompliance with her vocational programming services, but without affording her notice and an opportunity to present all relevant evidence in support of her due process complaint.

86. Canders v. Jefferson County Pub. Schs., 64 IDELR 36 (W.D. Ky. 2014). The mother of two elementary school children diagnosed with PTSD alleged that the principal and other school staff “humiliated” her when her children refused to enter their classroom by suggesting: 1) that a police officer might be able to “encourage” them to attend; 2) that they should go to a psychiatric hospital; and 3) that they needed to be spanked for misbehavior. The parent also alleged that the principal improperly had her cited for trespassing on school grounds. The court dismissed the mother’s petition for failure to exhaust administrative remedies. The complaint addressed alleged deficiencies in the children’s education programming. Further, the complaint failed to plead a viable claim for defamation. The court stated, “However embarrassed or degraded Canders may have felt, exactly what language was defamatory, to whom it was published, and how it injured Canders’ reputation remain unclear. Therefore, Canders pleads no specific facts sufficient ‘to raise a right to relief above the speculative level.’”

87. Walsh v. King, 64 IDELR 39 (N.D.N.Y. 2014). The parents of a 16-year-old girl with multiple disabilities sought an award of residential placement for their daughter from a federal judge after the state hearing officer had failed to render a final decision seven months past the due process hearing. The federal court found that the hearing officer was in violation of the IDEA, but gave the hearing officer 14 days to issue a final order in the case. The court cited the hearing officer’s

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“critical role” in the IDEA’s complex policy scheme as justification for giving him a chance to comply.

88. F.H. v. Memphis City Schs., 64 IDELR 2 (6th Cir. 2014). The 6th Circuit held that a settlement agreement reached as a result of the IDEA’s resolution meeting mechanism is enforceable in federal court. The fact that the settlement agreement was finalized 97 days after the resolution meeting did not affect its relation back to the original resolution meeting. Also, the Section 1983 claims brought on behalf of a 20-year-old student with cerebral palsy alleging verbal, physical, and sexual abuse by restroom aides were not subject to the administrative exhaustion rule because the student sought relief not otherwise available under the IDEA (money damages).

89. D.E. v. Central Dauphin Sch. Dist., 64 IDELR 1 (3d Cir. 2014). In a case of first impression, the court held that a school district’s noncompliance with a hearing officer’s order turned the prevailing party student into an “aggrieved party” for purposes of the IDEA. Therefore, the student had standing to enforce the hearing officer’s decision in federal court.

90. K.S. v. Rhode Island Bd. of Educ., 64 IDELR 9 (D.R.I. 2014). The court held that the IDEA’s exhaustion requirement does not apply when a case turns solely on a question of statutory interpretation. A student with Asperger syndrome was permitted to challenge the state department of education’s ruling allowing termination of IDEA services on a student’s 21st birthday.

91. N.W. v. Boone County Bd. of Educ., 63 IDELR 275 (6th Cir. 2014). A settlement agreement reached during a FAPE dispute in 2010 does not create a “stay-put” placement during subsequent disputes between the parents of a child with autism and severe apraxia and the school district. The settlement agreement’s terms specifically stated that the district would fund a private placement “through the summer of 2011.” This private placement was not the “current educational placement” for purposes of the “stay-put” provision because the child’s IEP team had never approved of a private placement through the IEP process.

92. J.S. v. Houston County Bd. of Educ., 63 IDELR 183 (M.D. Ala. 2014, unpublished). The parents of a fourth-grade child with cerebral palsy and an intellectual disability were required to exhaust their administrative remedies before seeking money damages under Section 504/Title II in federal court, even though they were completely happy with their child’s current educational program.

93. Motyka v. Howell Pub. Sch. Dist., 63 IDELR 154 (E.D. Mich. 2014). A state complaint is not the equivalent of a due process hearing for purposes of exhaustion of administrative remedies.

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94. Eley v. District of Columbia, 63 IDELR 165 (D.D.C. 2014). An Internet-based private school was not the equivalent of a “bricks and mortar” private school for purposes of “stay-put.” The court held that a move from the online private school would create a “change of placement” under the IDEA. Therefore, the “stay-put” provision of the IDEA would require the school district to continue the student’s virtual school program during the pending due process hearing.

95. S.C. v. Palo Alto Unified Sch. Dist., 63 IDELR 124 (N.D. Cal. 2014). An in-state transfer student with autism came with an IEP that offered a home-based ABA program. The student’s parents objected when the new school district offered “comparable” educational services in a school-based program rather than continuing the home-based ABA program during the pendency of a due process hearing. The federal court ruled that the “stay-put” provision of the IDEA “trumps” the transfer requirements. The court held that the school district must provide services that “approximate” the previous IEP services when litigation is pending, rather than simply providing “comparable” services.

96. Northport Pub. Sch. v. Woods, 63 IDELR 134 (W.D. Mich. 2014). A school district may seek recovery of its attorney’s fees from both the parents and their attorney when a due process complaint is filed that is frivolous, unreasonable, without foundation, or brought for an improper purpose.

97. Board of Educ. of Plainfield Cmty. Consol. Sch. Dist. 202 v. Illinois State Bd. of Educ., 63 IDELR 40 (N.D. Ill. 2014). There was no evidence that the mother of 13-year-old twins with disabilities was coerced into signing a mediation agreement that transitioned the children from a private school into a public middle school after the first semester of their sixth-grade year. The mother alleged that she signed the mediation agreement under duress and received nothing of value in the mediation. However, the court found that the public school’s concession of leaving the girls in the private school during the first semester was consideration in the agreement. There was no evidence that the parent signed the mediation agreement against her free will, even if she regretted it later.

X. SECTION 504/TITLE II OF THE ADA 98. K.M. v. Tustin Unified Sch. Dist., 65 IDELR 232 (C.D. Cal. 2015). Two years after the 9th U.S. Circuit Court of Appeals ruled in her favor in a landmark dispute about CART services, the parent of a high schooler with a cochlear implant won a second victory: the right to recover attorney's fees incurred in an IDEA due process proceeding. The District Court held that the parent's need to exhaust her administrative remedies allowed her to recover a portion of her legal expenses despite the fact that the ALJ found in the district's favor. U.S. District Judge David O. Carter pointed out that the U.S. Supreme Court has authorized awards of attorney's fees for administrative proceedings that are a prerequisite to

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filing a civil action in federal court. See New York Gaslight Club Inc. v. Carey, 112 LRP 28025, 447 U.S. 54 (1980). The judge further noted that the relief the parent sought -- the provision of CART services -- was available under the IDEA. As such, the parent could not sue the district for violating Title II's "effective communication" requirement without first seeking an administrative remedy. The District Court explained that the mandatory exhaustion provision made the IDEA administrative proceeding a component of Title II litigation. "[W]ere [the court] to read the statute otherwise and find [the] IDEA's administrative proceeding to be wholly distinct from the ADA proceeding, the IDEA statute would essentially be restricting the remedies available under the ADA, as a portion of the fees expended for a successful ADA claim (requiring an unsuccessful IDEA claim) would never be recoverable," Judge Carter wrote. Because the parent did not prevail on her IDEA claims, however, she could recover only half of the fees she incurred in the administrative proceeding. The court awarded the parent $369,608 in attorney's fees and costs, which included $55,622 in attorney's fees for the due process hearing. The 9th Circuit previously held at 61 IDELR 182 that the district's provision of FAPE did not necessarily establish compliance with its "effective communication" obligations under Title II. 99. Ball v. St. Mary’s Residential Training Sch., 65 IDELR 233 (W.D. La. 2015). A parent who perceived her son as having visible injuries and being "significantly underweight" when she visited him at a nonpublic residential school in October 2013 could not sue the school for violating Section 504 or Title II. The District Court held that the parent's failure to plead discrimination on the basis of disability required it to grant the school's motion to dismiss. U.S. District Judge James T. Trimble Jr. did not address whether Section 504 or Title II applied to the religious facility, which only served students with disabilities. However, he noted that the parent did not allege that the school discriminated against her son on the basis of disability or that it treated the student differently from nondisabled children. Instead, the court observed, the parent claimed that the student suffered abuse and neglect while in the school's custody. The court explained that such charges were not enough to establish a Section 504 or Title II violation. "These are serious allegations, which the court should not be understood to minimize here," Judge Trimble wrote. "However, [the parent's] remedies for breach of contract, intentional tort and negligence do not lie within Title II or Section 504 and remain for further proceedings." The court also dismissed the parent's IDEA claim, explaining that the statute does not apply to nonpublic religious facilities.

100. K.P. v. City of Chicago Sch. Dist. #299, 65 IDELR 42 (N.D. Ill. 2015). The court held that the school district was not required to allow an eighth-grade girl with a learning disability to use a calculator on a districtwide math assessment.

The assessment was a prerequisite to taking an entrance examination for one of the district’s academically competitive high schools. The district argued that the use of a calculator would invalidate the girl’s scores, and would give her an unfair advantage over nondisabled peers. The court held that the use of a calculator was

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not a “reasonable accommodation” under 504/Title II and was not in the public interest.

101. J.A. v. Moorhead Pub. Schs., ISD No. 152, 65 IDELR 47 (D. Minn. 2015).

The parents of a 5-year-old girl with Down syndrome must exhaust their IDEA administrative remedies before pursuing a federal lawsuit seeking money damages for alleged disability-based discrimination. The parents alleged that district officials acted with discriminatory intent by allowing the child to be placed in a storage closet when she became overstimulated in the classroom. The court held that the allegations were directly related to the IEP’s provision calling for the use of a “quiet room” for the child.

102. D.F. v. Leon County Sch. Bd., 65 IDELR 134 (N.D. Fla. 2015). Despite finding that Letter to McKethan, 25 IDELR 295, "falls short of a full and correct analysis" of the relationship between Section 504 and the IDEA, a federal District Court did not fault a Florida district for relying on the Letter of Findings when it denied a parent's request for Section 504 services. The court held that the district's conduct did not amount to retaliation for the parent's revocation of consent under the IDEA. U.S. District Judge Robert L. Hinkle did not squarely decide whether a parent's withdrawal of consent for IDEA services ends a district's obligations under Section 504. Even if the district erred in denying the parent's request for a Section 504 plan, the court explained, the parent did not produce any evidence showing that the district intentionally discriminated against the student, a middle schooler with a hearing impairment, or that the district acted in bad faith. To the contrary, the court observed, the district acted in good faith when it complied with Letter to McKethan. "The letter concluded that by revoking consent to IDEA services, 'the parent would essentially be rejecting what would be offered under [Rehabilitation Act] Section 504,'" Judge Hinkle wrote. The court criticized certain aspects of the Letter of Findings, including its failure to discuss the different requirements for FAPE under the IDEA and Section 504. However, it noted that the district could not have predicted those criticisms. "Without definitive guidance from a court, the letter was the best available guidance, other than the statutes and rules themselves," Judge Hinkle wrote. The court also held that the district's failure to develop a Section 504 plan -- an action tempered somewhat by the district's provision of a classroom amplification system and other disability accommodations -- could not amount to disability discrimination under Section 504 or Title II absent evidence that the district was deliberately indifferent to the student's needs.

103. Alboniga v. School Bd. of Broward County, Fla., 65 IDELR 7 (S.D. Fla. 2015). The court held that the school district was responsible for providing an adult “handler” for the service dog accompanying a 6-year-old boy with multiple disabilities, including a seizure disorder, despite Title II’s express language stating that agencies are not responsible for the “care and supervision” of service animals. The court equated the provision of an adult handler to a “reasonable accommodation” pursuant to Section 504. The accommodation was not for the

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dog, reasoned the court, but to assist the child in walking and caring for his service animal. The court also enjoined the district from requiring that the parent maintain liability insurance for the dog and requiring that the dog be vaccinated in excess of immunizations required by state law.

104. J.T. v. Dumont Pub. Schs., 64 IDELR 248 (N.J. App. Div. 2014). The creation of a centralized “inclusion” kindergarten class where the district placed a child with autism was not inappropriate or illegal. The evidence showing that the child made academic and social benefits proved that the child had received FAPE. The district’s refusal to place the child in his neighborhood school did not constitute discrimination under Section 504/Title II of the ADA. 105. Jason E. v. Department of Educ., State of Hawaii, 64 IDELR 211 (D. Hawaii 2014). The school district developed a Section 504 plan for a middle school boy with ADHD after his mother revoked consent for special education and related services pursuant to the IDEA. The parent subsequently sued alleging disabilitybased discrimination under Section 504 because she disagreed with the accommodations provided through the Section 504 plan. The court held that there was no evidence that the boy required any of the accommodations sought by the parent, and dismissed the plaintiff’s claims.

106. Frequently Asked Questions on Effective Commc'n for Students with Hearing, Vision, or Speech Disabilities in Pub. Elem. and Secondary Schs., 64 IDELR 180 (OSERS/DOJ/OCR 2014). Three federal agencies jointly issued a policy interpretation warning school districts that FAPE under the IDEA for a student with hearing, vision, or speech disabilities may not meet the requirements of Title II of the ADA. Title II requires districts to provide services that enable students with disabilities to receive benefits that are “as effective as” the benefits received by nondisabled students.

107. K.D. v. Starr, 64 IDELR 107 (D. Md. 2014). The parent of a teen with learning disabilities and ADHD was permitted to sue the school district alleging disability-based discrimination. The court held that the parent’s allegations that district officials unilaterally discontinued a Section 504 accommodation (oral testing) and that teachers failed to implement other accommodations in the plan could support a finding of disability-based discrimination.

108. T.F. v. Fox Chapel Area Sch. Dist., 64 IDELR 61 (3d Cir. 2014, unpublished).

The school district’s refusal to adopt the 19-page Section 504 plan proposed by the parents of a student with food allergies was not a violation of the law. The court found that the school district’s proposed health plan/accommodations would have met the child’s unique needs. The district’s failure to incorporate all of the parents’ requested accommodations did not constitute a violation of Section 504.

109. K.K. v. Pittsburgh Pub. Schs., 64 IDELR 62 (3d Cir. 2014, unpublished). The school district’s provision of “a modest approximation” of advanced placement

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academic classwork during homebound instruction satisfied the requirements of Section 504 for a gifted high school senior with gastroparesis. The 3d Circuit held that the district’s failure to realize that the girl had started skipping classes and staying in the library due to anxiety was not a violation of Section 504.

110. B.D. v. District of Columbia, 64 IDELR 46 (D.D.C. 2014). The parents of a student with multiple disabilities alleged that district officials retaliated against them for advocating on their son’s behalf by reporting the family to child welfare authorities. The district made the report to the state after the student became truant. The court held that the district had a legal obligation to report the truancy to child welfare. "It strains credulity, to say the least, for [the parents] to argue that [the district] engaged in retaliatory behavior simply by reporting conduct that it had a legal obligation to report," Judge Richard J. Leon wrote. The court also dismissed the parents' Section 504 and Title II discrimination claims based on their failure to allege bad faith or gross misjudgment.

111. Blunt v. Lower Merion Sch. Dist., 64 IDELR 32 (3d Cir. 2014), petition for cert. filed (U.S. 01/27/15) (No. 14-926). The court held that the slightly higher percentage of African-American students identified as disabled did not establish race-based discrimination. The evidence showed that the eligibility results were based on legitimate individualized assessments of all students who were suspected of having disabilities.

112. R.K. v. Board of Educ. of Scott County, Ky., 64 IDELR 5 (E.D. Ky. 2014).

The assignment of a kindergartner with diabetes to a non-neighborhood elementary school that was staffed with a full-time nurse was not discriminatory pursuant to Section 504/Title II of the ADA. Section 504 requires school district to provide “reasonable accommodations,” not the “best possible accommodations.”

113. T.C. v. Lewisville Indep. Sch. Dist., 64 IDELR 113 (E.D. Tex. 2014), adopted by, 64 IDELR 148 (E.D. Tex. 2014). The parent of a student with anxiety and organization problems is required to prove that district officials acted with “bad faith” or “gross misjudgment” in order to substantiate her discrimination claim.

The fact that the parent disagreed with the accommodations offered by the district is not sufficient to support a discrimination claim.

114. S.D. v. Moreland Sch. Dist., 63 IDELR 252 (N.D. Cal. 2014). A federal court in California refused to dismiss claims made by the parent of a girl with autism. The mother alleged that the district was aware that her daughter’s head-banging was causing injury to the student, that it was interfering with her education, and that the district was “deliberately indifferent” to this behavior. The parent alleged that the girl had up to 23 instances of head-banging each school day.

115. Estrada v. San Antonio Indep. Sch. Dist., 63 IDELR 213 (5th Cir. 2014, unpublished), cert. denied, 115 LRP 7609 (U.S. 02/23/15) (No. 14-648). The

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sexual assault of a high school student with cerebral palsy by an adult aide did not establish “bad faith” or “gross misjudgment” on the part of the school district. The district had adopted an unofficial practice of utilizing two adult aides in restrooms when students with disabilities required toileting assistance. The district’s failure to ensure that two aides were present during all restroom visits with this student did not establish a violation of Title II/intentional discrimination.

116. Batchelor v. Rose Tree Media Sch. Dist., 63 IDELR 212 (3d Cir. 2014). The 3d Circuit held that the IDEA’s exhaustion requirements apply to 504/Title II retaliation claims related to alleged violations of the IDEA. 117. Community County Day Sch. v. School Dist. of City of Erie, 63 IDELR 259 (W.D. Pa. 2014). The court rejected an attempt by the parents of students with emotional disturbance to force the school district to fund their children’s tuition at a Medicaid-funded hospital. The court rejected the parents’ argument that the Medicaid Act’s “freedom of choice” provision compels school districts to fund placements selected by families.

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