In Garcetti v. Cevallos, 547 U.S. 410 (2006) the United States Supreme Court held that when a public employee speaks out in his or her capacity as a public employee (and not as a private citizen) the remarks are not protected by the First Amendment and may support disciplinary action by the employer. In the wake of that decision, questions have arisen as to whether various individuals were, in fact, speaking out in their “official capacity” or as private citizens on matters of public concern.
The Ninth Circuit appropriately summarized the difficult job of a school administrator in Wynar v. Douglas County School District when Circuit Judge Margaret McKeown noted that “[w]ith the advent of the Internet and in the wake of school shootings at Columbine, Santee, Newtown and many others, school administrators face the daunting task of evaluating potential threats of violence and keeping their students safe without impinging on their constitutional rights. It is a feat like tightrope balancing, where an error in judgment can lead to a tragic result.”
The IDEA and the ADA are related, but they are not the same.
The beginning premise is simple enough: When a disabled student requests help under the Individuals with Disabilities Education Act (IDEA)(20 USC §1412) in order to obtain a “free appropriate public education,” commonly known as a FAPE in education law lingo, school districts must develop an Individualized Education Plan (“IEP”) to bridge the gap.
The First Amendment protects religious freedom and, because of that important right, religious institutions are entitled to an exemption from civil rights statutes that govern employment discrimination. This principle was at the core of two important decisions, one from the U.S. Supreme Court and another from the California Court of Appeal.
We previously reported on the decision in J.C. v. Beverly Hills Schools, 757 F.Supp.2d 1094 (C.D. Cal. 2010),a case that held in favor of a suspended student andestablished the principle that in order to discipline students for off-campus Internet bullying, school administrators must establish that the activity in question had a substantial disruptive impact on school related activities.
Although religious institutions are subject to the Nation’s civil rights laws, a difficult issue arises when a religious order seeks to hire its own ministers. Those decisions, courts have held, are exempt from the civil rights laws on the theory that First Amendment Freedom of Religion grants the institution a broad right to hire religious leaders of its own choosing without government interference.
The factual scenario in Bardzik v. County of Orange is a familiar one. Jeffrey Bardzik was a lieutenant in the Orange Count Sheriff’s Department under the command of Sheriff Michael Carona. Lieutenant Bardzik contended that Sheriff Carona retaliated against him after he (Bardzik) backed Carona’s opponent in an election campaign.
Two cases decided by the court of appeal highlight the dilemma facing many local school districts when the state legislature mandates that they perform additional services. When that happens, the state constitution and related statutes require that the state appropriate money to pay (reimburse) the local school district for the costs associated with the increased service load.
But what if the Legislature does not appropriate enough money to cover the costs of the additional mandated services? And what if the Legislature does make the appropriation, but the Governor vetoes it?
The California Supreme Court has ruled that a school district may face liability if it negligently hired a known child abuser and then allowed the person to closely interact with students as a counselor without adequate supervision.