NSBA Legal Advocacy Update

Transcription

1 NSBA Legal Advocacy Update Francisco M. Negrón NSBA, Alexandria, VA Presented at the 2018 School Law Seminar, April 5-7, San Antonio, TX The NSBA Council of School Attorneys is grateful for the written contributions of its members. Because Seminar papers are published without substantive review, they are not official statements of NSBA/COSA, and NSBA/COSA is not responsible for their accuracy. Opinions or positions expressed in Seminar papers are those of the author and should not be considered legal advice National School Boards Association. All rights reserved.

2 The U.S. Supreme Court and NSBA Legal Advocacy Update 2017 Term Presented by: Francisco M. Negrón, Jr., Chief Legal Officer Written by: Thomas Burns, Legal Research Specialist National School Boards Association During the present U.S. Supreme Court term ( ), the National School Boards Association (NSBA) filed two amicus briefs in support of petitions for certiorari. In October 2017, NSBA filed an amicus brief in Window Rock Unified School District v. Reeves, which subsequently was denied review by the Court. In November 2017, NSBA filed an amicus brief in South Dakota v. Wayfair, Inc. The NSBA also has filed amicus briefs in five cases at the U.S. Court of Appeals level and one at the federal district court level. On February 26, 2018, the Supreme Court heard oral argument in Janus v. American Federation of State, County, and Municipal Employees Council 31 and the justices denied review in M.L. v. Smith. Petitions For Certiorari Window Rock Unified School District v. Reeves, No , Review Denied 1 Issue Presented: Whether a tribal court has jurisdiction to adjudicate employment claims by Arizona school district employees against their Arizona school district employer that operates on the Navajo reservation pursuant to a state constitutional mandate to provide a general and uniform public education to all Arizona children. Procedural History: A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held that a Navajo Nation tribal court had jurisdiction over a lawsuit brought by employees of Window Rock Unified School District (WRUSD), which operates schools on tribal property. 2 The Ninth Circuit panel held that tribal courts have the authority to exercise concurrent jurisdiction over employment claims asserted by district employees working on Indian reservations. 3 WRUSD filed a petition for certiorari with the U.S. Supreme Court asking it to review the Ninth Circuit panel's decision. NSBA and the Arizona School Boards Association (ASBA) filed an amicus brief in support of WRUSD F.3d 894 (9th Cir. 2017), cert. denied, 138 S.Ct. 648 (2018). 2 Window Rock Unified Sch. Dist., 861 F.3d 894, 904 (9th Cir. 2017). 3 Id. at 906.

3 Amicus Strategy: The NSBA/ASBA brief made two main arguments. 4 First, the Ninth Circuit's decision ignores the legal status of public school districts as state political subdivisions bound by federal and state employment law and procedures. The first argument is broken down into to subarguments: (1) Concurrent tribal court jurisdiction over federal and state employment claims brought against a public school district will lead to a confusing disarray of conflicting laws that govern the employment of school district staff; and (2) Concurrent state and tribal court jurisdiction over public school employment claims will result in judicial inefficiency, significant time and costs, and lack of finality. Second, the Ninth Circuit's decision erodes the established authority of state and federal law to regulate public education on tribal lands and leads to uncertainty that will destabilize school district operations. On January 8, 2018, the U.S. Supreme Court denied WRUSD s petition for review. Granted Review South Dakota v. Wayfair, Inc., No , Review Granted 5 Procedural History: The Supreme Court of South Dakota held that companies selling wares over the Internet cannot be required to collect South Dakota s 4.5% tax on purchases, laying the groundwork for a U.S. Supreme Court appeal that could change law across the country. A decision forcing online retailers to collect such taxes could be worth billions in revenue to state and local governments. 6 The state supreme court agreed with online retailers Overstock.com Inc., Wayfair Inc. and NewEgg Inc., which are challenging a state law that required companies that do more than $100,000 worth of business in online sales in the state to collect sales taxes. The court found that the law runs afoul of the U.S. Supreme Court s 1992 decision in Quill Corp v. North Dakota, which forbade states from requiring retailers without a physical presence in the state to collect sales tax. South Dakota filed a petition with the U.S. Supreme Court asking it to review the South Dakota Supreme Court s decision and reinstate the tax. The U.S. Supreme Court granted review on January 12, Amicus Strategy: NSBA, joining the State and Local Legal Center (SLLC) and several other government and education advocacy organizations at both the petition and merits stage, filed 4 The NSBA/ASBA brief is available at N.W.2d 754, cert. granted, No , 138 S.Ct. 735 (2018). 6 Jet Feeney, Internet Tax Ruling Worth Billions Poised for Supreme Court Review, Bloomberg (Sept. 14, 2017),

4 amicus briefs in support of the State of South Dakota s position that Quill should overruled. The petition stage brief made three main arguments: (1) Quill has resulted in a tidal wave of litigation and created a sea of uncertainty among states as to how to collect taxes in today s digital age; (2) This case is an optimal vehicle for deciding whether Quill should be overruled; and (3) Until it is overruled, Quill will continue to wreak havoc on state and locate government ability to collect taxes that are already owed. 7 The merits stage brief was filed on March 2, Although the merits brief reiterates the points made at the petition stage, it also points out that states inability to collect sales tax from remote sellers prevents states from obtaining revenue to provide vital state services, such as public education: Public schools, for example, rely on state revenues from, among other sources, sales tax. See Center for Public Education, Data F1rst: How Much Money Does Our School District Receive from Federal, State, and Local Sources? To demonstrate, the National Center for Education Statistics reported that during the school year, in 23 states, at least half of education revenues came from state governments. 9 Janus v. American Federation of State, County, and Municipal Employees Council 31, No , Review Granted 10 Question Presented: Twice in the past five years, this Court has questioned its holding in Abood v. Detroit Board of Education, 431 U.S. 209 (1977) that it is constitutional for a government to force its employees to pay agency fees to an exclusive representative for speaking and contracting with the government over policies that affect their profession. See Harris v. Quinn, _U.S._, _, 134 S. Ct. 2618, (2014); Knox v. SEIU, Local 1000, 567 U.S. 298, _, 132 S. Ct. 2277, 2289 (2012). Last term this Court split 4 to 4 on whether to overrule Abood. Friedrichs v. Cal. Teachers Ass'n, _U.S._, 136 S. Ct (2016). This case presents the same question presented in Friedrichs: should Abood be overruled and public sector agency fee arrangements declared unconstitutional under the First Amendment? 7 SLLC/NSBA s petition stage amicus brief is available at 8 SLLC/NSBA s merits stage amicus brief is available at 9 Id. at * F.3d 746 (9th Cir. 2017), cert. granted, 138 S.Ct. 54 (Sept. 28, 2017).

5 Procedural History: The State of Illinois filed an action challenging, on First Amendment free speech grounds, the provision of the Illinois Public Relations Act under which a union representing public employees may collect dues only from its members, but fair share fees from non-member employees on whose behalf the union also negotiated. The United States District Court for the Northern District of Illinois granted the public employees' motion to intervene, and dismissed the action. Employees appealed to the U.S. Court of Appeals for the Seventh Circuit. A Seventh Circuit panel held that one employee was barred by claim preclusion. As to the other employee, the panel stated his claim was also properly dismissed, though on a different ground: that he failed to state a valid claim because, as we said earlier, neither the district court nor this court can overrule Abood and it is Abood that stands in the way of his claim. The employee filed a petition for certiorari with the U.S. Supreme Court, which granted review on September 28, The Court heard oral argument on February 26, A decision is expected by June. U.S. Court of Appeals M.R. v. Ridley Sch. Dist (3d Cir.) Decided 11 Issue: Whether parents of a special education student that obtained a court order requiring a school district to reimburse them for the student s stay put placement pursuant the Individuals with Disabilities Education Act (IDEA) were a prevailing party under IDEA and, therefore, entitled to attorneys fees. Facts: The parents of a special education student, identified as E.R., pressed their claim that Ridley School District (RSD) had failed to provide E.R. with a free appropriate public education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA). After the federal district court denied the claim and a U.S. Court of Appeals for the Third Circuit panel upheld the district court s decision, the parents sought reimbursement for the cost of private school placement during the pendency of their FAPE claim under IDEA s stay-put provision. Both the district court and a Third Circuit panel upheld the parents entitlement to reimbursement for the private school placement under IDEA s stay-put provision. The parents filed a motion for attorneys fees as a prevailing party based on the success of their stay-put claim. The district court denied the motion, holding that reimbursement for the costs of E.R. s temporary stay put placement was only interim relief and thus E.R. s parents were not prevailing parties. Holding/Reasoning: The Third Circuit panel reversed the lower court s denial of the motion and remanded the case to it for further proceedings consistent with the panel s ruling. The panel F.3d 218 (3d. Cir. 2017).

6 concluded that the parents were prevailing parties within the meaning of IDEA and thus eligible for award of attorneys fees. It acknowledged that the district court was faced with a novel fee motion because prior Third Circuit precedent had addressed forward-looking and injunctive IDEA stay put relief, but [had] never before addressed eligibility for fees in a case where a party received backward-looking and compensatory relief arising from the IDEA s stay put provision. The panel held such relief, i.e., backward-looking and compensatory stay put relief, is merits-based and confers prevailing party status. It found that IDEA s attorneys fees provision and 42 U.S.C s attorneys fees provision should be interpreted in the same way. It then focused on two 1988 cases that supported the parents claim. The panel determined the cases [favor] the view that the reimbursement obtained here, arising from claims and defenses that were independent of those relating to E.R. s IEP, conferred prevailing party status to E.R. s parents. It imported the analysis from the 1988 cases to the IDEA context, where, as we explain below, the IDEA s statutory context and overall object provide additional support for holding that E.R. s parents are prevailing parties. Acknowledging that under IDEA fees are not available when parents seek a forward-looking stay put injunction, the panel said, The IDEA s statutory scheme accords far better with an attorneys fee regime that allows parents to take effective legal action if necessary to enforce their stay put rights. It stressed that when parents are seeking to obtain retrospective compensatory relief, then, for all practical purposes, the resulting proceedings are separate from any IEP or educational placement proceedings. Regarding Third Circuit cases, the panel pointed out: Even when discussing reimbursement related to a temporary stay put educational placement, thus, our prior opinions establish that retrospective and compensatory relief can ground a fee award. It found that RSD had failed to discern from the Third Circuit previously referenced that the procedural postures of those cases,, involved forward-looking and temporary injunctive relief, not backward-looking and compensatory relief that requires an independent merits determination. According to the panel, E.R. s interim forward-looking right under 1415(j) to stay in private school was not at issue, and, in contrast to a contempt order that we must consider in relation to an underlying preliminary injunction. Instead, it said, E.R. s parents reimbursement award equated to backward-looking compensatory relief intended to redress the concrete loss that the plaintiff[s]... suffered by reason of the defendant s wrongful conduct. The panel, therefore, concluded: The reimbursement award, in other words, had its own, independent merits and sought relief separate from any other relief that E.R. s parents had sought from Ridley characteristics that confer prevailing party status. After reviewing decisions from the other federal appellate circuit courts, the panel concluded Courts of Appeals addressing reimbursement awards in the broader context of the IDEA have held generally that retrospective and compensatory relief confers prevailing party status, and both

7 appellate and district courts have ruled, specifically in the context of addressing backward-looking stay put relief (analogous to the reimbursement award here) or similar independent relief obtained under the IDEA, that such relief does confer prevailing party status, consistent with our conclusion today. The panel stated: Where the action enforces the child s physical right to stay put and the parents obtain temporary forward-looking injunctive relief, there is no determination on the merits and the parents are not eligible for a fee award. But where the action enforces the parents right to reimbursement or the child s right to compensatory education and the parents obtain backward-looking compensatory relief, the action requires an independent merits determination and the parents are eligible for a fee award. E.R. s parents reimbursement litigation falls into the latter category: When Ridley refused to pay for E.R. s stay put placement, E.R. s parents sued for backward-looking compensatory relief, and, when they won the relief they sought, they obtained a meritsbased victory. Petition for Rehearing En Banc: RSD filed a petition for rehearing en banc with the Third Circuit. NSBA filed an amicus brief in support of RSD s motion. 12 The brief argued: (1) That the Third Circuit panel decision undermined the legal primacy of free appropriate public education (FAPE) under IDEA; and (2) The Third Circuit panel decision imposes substantial financial burdens on school districts that have met their IDEA responsibilities at the expense of the educational needs of all school children. On September 26, 2017, the Third Circuit issued an order denying RSD s petition for rehearing en banc. 13 R.M. v. Gilbert Unified School District, No (9th Cir.) Pending 14 Issue: Whether IDEA's FAPE requirement that a student's IEP must provide educational benefit as defined by Endrew F. outweighs IDEA's preference for such benefit in the least restrictive environment? Procedural History: The U.S. District Court for the District of Arizona held that the school district, even though it unilaterally changed the location where a special education student received services, had provided the student a free appropriate public education (FAPE) in the least 12 NSBA s amicus brief is available at 13 M.R. v. Ridley Sch. Dist., No , pet. for reh g denied (3d Cir. Sept 26, 2017). 14 No. CV PHX-JJT, 2017 WL (D. Ariz. Jul. 31, 2017), appeal filed, No (9th Cir. Aug. 28, 2017).

8 restrictive environment (LRE) as mandated by the Individuals with Disabilities Education Act (IDEA). 15 The parents filed an appeal with the U.S. Court of Appeals for the Ninth Circuit, seeking to reverse the district court s decision. NSBA and the Arizona School Boards Association (ASBA) filed an amicus brief in support of the school district, Gilbert Unified School District (GUSD). Amicus Strategy: NSBA/ASBA s amicus brief makes four arguments: 16 First, the Supreme Court has clarified that a school district provides a FAPE in the LRE when it offers a program reasonably calculated to enable progress. Second, educational benefit is the key factor for a court determining whether a school district has provided services in the LRE. The second argument is broken down into two sub-arguments: (1) IDEA s preference for providing services in the LRE is not absolute; and (2) In Endrew F., the Supreme Court strengthened the importance of the educational benefit factor in LRE determinations.third, The IDEA s LRE Preference Does Not Prohibit Transfers That Change the Location Where Services Are Delivered.. Lastly, the brief asserts: Courts must defer to school personnel on matters of educational methodology, including changes in location of services. Davison v. Rose, No (4th Cir.) Pending 17 Issue: Whether public office holder's private social media account constitutes a public forum for First Amendment purposes. Procedural History: The U.S. District Court for the Eastern District of Virginia held that it was not clearly established that the personal Facebook page of a public official is a public forum and, therefore, held the public official was entitled to qualified immunity from the plaintiff s claim that his First Amendment free speech rights were violated because he was denied access to the Facebook page for purposes of expressing his opinion. The district court stated: It is not clear as a legal matter whether the Facebook pages at issue in this litigation can be said to constitute either type of public forum. In any event, it cannot be said that such a First Amendment right was a clearly established right, of which a reasonable person would gave known. These Individual Defendants are therefore entitled to qualified immunity for the actions they took against Plaintiff with respect to their Facebook pages R.M. v. Gilbert Unified Sch. Dist., 2017 WL , *9 (D. Ariz. Jul. 31, 2017). 16 NSBA/ASBA s amicus brief is available athttp:// 17 No. 1:16cv0540 (AJT/IDD), 2017 WL (E.D. Va. Jul. 28, 2017), appeal filed, No (4th Cir. Aug. 24, 2017). 18 Davison v. Rose, No. 1:16cv0540 (AJT/IDD), 2017 WL , *10 (E.D. Va. Jul. 28, 2017).

9 The plaintiff filed an appeal with the U.S. Court of Appeals for the Fourth Circuit. NSBA joined with the Local Government Attorneys of Virginia, Inc. ( LGA ), the International Municipal Lawyers Association ( IMLA ), the Virginia Association of Counties (VACo) and the Virginia Municipal League (VML) in support of the defendant public officials and county government. Amicus Strategy: the NSBA et al brief makes two arguments. 19 First, the private social media accounts of public officeholders are neither traditional nor designated public forums. Second, commandeering the private social media page of a public officeholder and converting it to a public forum violates the First Amendment rights of the officeholder and the corresponding First Amendment rights of the officeholder s constituents. A clean and simple rule, aligned with classic First Amendment doctrine and principle, and far better calculated to enhance the vibrancy of our political discourse, is that government social media platforms may be public forums, but the personal social media platforms of officeholders may not. On March 18, the Fourth Circuit dismissed the appeal and remanded the case to the district court, finding that because the district court did not rule on Davison s request for injunctive relief, it had never issued a final decision in the case, and the court lacked appellate jurisdiction. The court remanded for the district court to consider the request for injunctive relief. L.H. v. Hamilton County Department of Education, No (6th Cir.) Pending 20 Issue: What are the appropriate standards for determining whether an educational placement offers the Least Restrictive Environment (LRE) for a student with a disability and whether a change in location constitutes a change in placement? Facts: The case arose when the Hamilton County Department of Education proposed to move L.H., a child with Down Syndrome, to another elementary school for his third grade year so that he could receive his academic instruction in a self-contained classroom (not available in his neighborhood school). He would be mainstreamed during lunch and other activities such as art. L.H. had previously received special education and related services in a regular academic setting, but during second grade he began to experience difficulty progressing toward his IEP goals. At his parents insistence those goals had been aligned with the regular education standards for second grade. In the district s view, L.H. could not achieve meaningful progress on those goals in the regular classroom. The parents disagreed and placed him in a private setting and requested a due process hearing, claiming that the self-contained setting was not the least restrictive environment. The hearing officer ruled in the school district s favor. The parents filed an action in district court, challenging the hearing officer s findings and claiming that the failure to provide L.H. with the least restrictive environment violates the ADA. 19 NSBA et al s brief is available athttp:// 20 No. 1:14-cv-126, 2017 WL (E.D. Tenn. Jul. 17, 2017), appeal filed (6th Cir. Aug. 25, 2017).

10 The court ruled that the school district had failed to provide L.H. with the least restrictive environment because it had been improperly measuring the child s progress against his IEP goals that incorporated the curricular standards applicable to second grade students in the regular classroom instead of assessing advancement with respect to the child s own abilities. In a separate ruling on the ADA claim, the court denied the district s request for summary judgment. In the court s view, the ADA does not require parents seeking only equitable relief and not damages to show discriminatory intent. The Hamilton County Department of Education (HCDE) appealed to the U.S. Court of Appeals for the Sixth Circuit, seeking to reverse the district court s rulings. NSBA, along with the Kentucky School Boards Association (KSBA), the Michigan Association of School Boards (MASB), the Ohio School Boards Association (OSBA), and the Tennessee School Boards Association (TSBA), filed an amicus brief in support of HCDE. Amicus Strategy: The NSBA et al brief makes three arguments. 21 First, a school district provides a FAPE in the LRE when it offers a program reasonably calculated to enable progress. Second, courts should defer to placement decisions of school personnel because they are individualized determinations requiring educational expertise. Third, imposing automatic liability under the Americans with Disabilities Act and Section 504 for IDEA violations contravenes established law and harms school districts ability to educate children with disabilities. This case presents this Court its first opportunity since the U.S. Supreme Court decision in Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017), and its most significant opportunity since Roncker v. Walter, 700 F.2d 1058 (6th Cir.), cert. denied, 464 U.S. 864 (1983), to address the appropriate standards for determining whether an educational placement offers the least restrictive environment ( LRE ) for a student with a disability and whether a change in location constitutes a change of placement. U.S. District Court Vidal v. Nielsen, No (E.D. N.Y.) Pending 22 Background: This suit seeks to prevent the Trump administration from rescinding the Obama administration s 2014 immigration relief initiatives, known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (expanded DACA) In August 2016, a lawsuit was filed in the U.S. District Court for the Eastern District of New York by Martín Batalla Vidal, a DACA recipient, challenging the reach of the unlawfully broad 21 NSBA et al s amicus brief is available at 22 The legal complaint in Vidal v. Nielsen is available at Vidal-v-Duke-2d-Amended-Complaint pdf.

11 injunction in United States v. Texas, 23 the case brought by Texas and 25 other states challenging DAPA and expanded DACA. 24 The plaintiffs filed a motion for a preliminary injunction seeking to prevent the U.S. Department of Homeland Security, the U.S. Department of Justice and President Donald J. Trump from rescinding the DACA program. NSBA joined with several national education advocacy groups to file an amicus brief in support of the motion for a preliminary injunction. 25 The amicus brief stated: The Department of Homeland Security has made a cruel and thinly reasoned decision to rescind DACA, one that will wipe out these gains and cause irreparable harm to schools, colleges, their staff and their students. The DHS announcement has already destabilized schools and disrupted classrooms. If not enjoined, the rescission will deprive districts of much-needed DACA educators. It will also deprive DACA students of invaluable opportunities to work, study, and give back to our schools and communities. Amici therefore urge the Court to grant Plaintiffs request for a preliminary injunction, to prevent DACA students and teachers from precipitously losing full participation in the nation s schools where they learn, teach, and thrive. 26 The brief also asserted that terminating the DACA program will deprive schools and universities of qualified teachers and mentors, diminish diversity in the teaching corps, and destabilize school environments. 27 On February 13, 2018, the U.S. District Court for the Eastern District of New York issued a preliminary injunction barring the Trump administration from rescinding the DACA program on a nationwide basis. The injunction requires the Department of Homeland Security to accept and review DACA renewal applications after the court found the government failed to explain or justify changing that policy Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015), aff d, 809 F.3d 134 (5th Cir. 2015), aff d by an equally divided court, 136 S. Ct (2016) (per curiam). 24 Suit alleges order by Texas judge not binding in NY, president s program should proceed, National Immigration Law Center (Aug. 25, 2016), 25 The NSBA et al amicus brief is available at 26 Id. at *1. 27 Id. at * Vidal v. Nielsen, 279 F.Supp.3d 401, 409 (E.D. N.Y. 2018).

12 U.S. Court of Appeals Addendum March, 2018 Regents of the Univ. of California v. U.S. Dept. of Homeland Security, Consolidated Case Nos , , , , , , , , 279 F.Supp.3d 1011 (N.D. Cal. 2018); mandamus denied, 875 F.3d 1200 (9th Cir. 2017); stay denied, 875 F.3d 1177 (9th Cir. 2017); cert. granted, judgment vacated, 138 S.Ct. 443 (2017); on remand, 279 F.Supp.3d 1011 (N.D. Cal. 2018), appeal filed, Jan. 16, 2018, No (9 th Cir.) Here, the University of California system ( the Regents ) brought suit against the U.S. Department of Homeland Security challenging the Trump Administration s decision to rescind the DACA program, asserting that the rescission was arbitrary and capricious and contrary to the standards established by the federal Administrative Procedures Act. The case has been consolidated with four other challenges to the DACA rescission brought by the States of California, Maine, Maryland, and Minnesota; the City of San Jose; eight individual DACA recipients, and the County of Santa Clara with its service employees union. The district court granted a preliminary injunction requiring the administration to maintain the DACA program on a nationwide basis, with some exceptions. The U.S. Supreme Court denied mandamus review on February 26, 2018, stating: : The petition for a writ of certiorari before judgment is denied without prejudice. It is assumed that the Court of Appeals will proceed expeditiously to decide this case. 29 The case was then appealed to the Ninth Circuit. NSBA and several national, state and local educational organizations filed a joint amicus brief with the Ninth Circuit, asserting similar arguments to those articulated in the brief filed in Vidal v. Nielsen U.S. Supreme Court Order List, 583 U.S. Feb. 26, 2018, 30 The NSBA et al. amicus brief is available at