Recent Court Cases


	RECENT COURT CASES (updated 5/9/2010) We will post summaries of relevant court cases on an intermittent basis. Three DUIs constitutes "unfitness to teach" under Morrison, says California Court of Appeal 5/7/10: The California Court of Appeal interpreted the longstanding Morrison case regarding teacher discipline in reviewing the situation of an elementary school teacher convicted of three DUIs in 15 years. The Commission had moved to suspend the teacher as “unfit to teach,” and the Court of Appeal upheld this interpretation. In so doing, the Court revisited the famous Morrison factors. (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 224-225.). Read the decision in Broney v. California Commission on Teacher Credentialing at: http://www.courtinfo.ca.gov/opinions/documents/C060831.PDF District to appeal ruling on classroom banners [San Diego Union-Tribune] 3/9/10]: The Poway Unified School District will appeal a federal judge’s ruling that school officials violated the constitutional rights of a high school math teacher when they ordered him to take down classroom banners that referred to God. For the full story, go to: http://www.signonsandiego.com/news/2010/mar/09/district-to-appeal-ruling-on-classroom-banners/ The case is Johnson v. Poway Unified School District (2010 WL 768856 (S.D. Cal.)). To read the National School Boards Association page on this case, go to: http://www.nsba.org/MainMenu/SchoolLaw/LegalClips/Johnson-v-Poway-Unified.aspx To read the decision by the District Court judge, go to: http://www.thomasmore.org/downloads/sb_thomasmore/Johnson-PowayOrderGrantingSummaryJudgment.pdf Charter School Not a 'State Actor,' Court Rules [School Law Blog] 1/6/10: A federal appeals court has ruled that an Arizona charter school is not a "state actor" for purposes of federal civil rights law. The court upheld the dismissal of a lawsuit filed by a former teacher at the school who alleged that the school deprived him of his liberty interest in finding other work. For the full blog posting, go to: http://blogs.edweek.org/edweek/school_law/2010/01/charter_school_not_a_state_act.html The case is Caviness v. Horizon Community Learning Center and can be found at: http://www.ca9.uscourts.gov/datastore/opinions/2010/01/04/08-15245.pdf 9^th Circuit Rules that Arizona Charter School Not State Actor for Purposes of Employment [9^th Circuit U.S. Court of Appeals] 1/4/10: The United States Court of Appeals for the Ninth Circuit Court recently held in Caviness v. Horizon Community Learning Center, Inc. that a teacher dismissed by an Arizona charter school could not sue his former employer for a violation of 42 U.S.C. section 1983. The Court found the charter school was not a state actor for purposes of employment decisions, and therefore could not be found liable under section 1983. To read the full decision in Caviness, go to: http://www.ca9.uscourts.gov/datastore/opinions/2010/01/04/08-15245.pdf 9^th Circuit Finds School Search by Resource Officer and Sheriff to be Violations of Fourth Amendment Greene v. Camreta (9^th Circuit) 12/10/09: The Ninth Circuit Court of Appeals considered whether a social worker’s interview of a student at school about suspected child abuse in the presence of a police officer and without a warrant, court order, exigent circumstances, or parental consent violated the student’s and parent’s Fourth Amendment right to be free from unreasonable search and seizure. The Court held that the investigation conducted by Camreta and Alford and the removal and examination instigated by Camreta all violated Sarah and the girls’ constitutional rights. As to the investigation, however, we conclude that Camreta and Alford cannot be liable in damages because they have qualified immunity. To read the full decision, go to: http://www.ca9.uscourts.gov/datastore/opinions/2009/12/10/06-35333.pdf California Supreme Court rules (finally) and upholds District in school mailbox case San Leandro Teachers Association v. Governing Board of the San Leandro Unified School District 6/18/09: Shortly before an election, an employee organization that represents school teachers, and which regularly communicates with its members through school mailboxes, sought to distribute literature through these mailboxes that included endorsements of certain school board candidates. The school district administration refused to permit such political communication. The California Supreme Court upheld the Court of Appeal decision supporting the San Leandro school district’s “reasonable regulation” of school mailboxes. In so doing, the Court discussed what constituted a “service,” and what constitutes “equipment” under Education Code section 7054. In this First Amendment challenge prohibiting political communication via school mailboxes, the denial of the writ of mandate sought by the Plaintiff was affirmed where the mailboxes were a nonpublic forum, and the regulation was content-neutral. For the full decision, go to: http://www.courtinfo.ca.gov/opinions/documents/S156961.PDF To read the story in the Oakland Tribune, go to: http://www.insidebayarea.com/education/ci_12620198 Some of the decision: “…[A]s the legislative history of section 7054 makes clear, it was designed to avoid the use of public resources to perpetuate an incumbent candidate or his or her chosen successor, or to promote self-serving ballot initiatives, thereby compromising the integrity of the electoral process. The District contends that permitting employee organizations to use the mailboxes to endorse school board candidates will unfairly advantage those organizations and the candidates they endorse, because it allows them, but not other candidates and organizations, to use the mailboxes to communicate with teachers about these endorsements. We agree that this special access to an internal channel of communication to influence elections is a potential abuse that section 7054, and the Stanson [Stanson v. Mott, 1977] decision, were designed to guard against… [W]e conclude, consistent with the purpose of section 7054, that the broad term ―equipment—was intended to encompass mailboxes specially constructed at taxpayer expense to serve as a school‘s internal communication channel, which one group may not use to its exclusive political advantage….We emphasize the narrowness of the decision… We hold only that a rule prohibiting candidate endorsement literature in school mailboxes is a ―reasonable regulation—within the meaning of Government Code section 3543.1, subdivision (b) because it enforces the directive of section 7054. California Court of Appeal Agrees Priority in Rehiring Should Extend to Full-time Employees with Less Seniority Hildebrandt v. St. Helena Unified Sch. Dist. [California Court of Appeal, 1^st District] 3/19/09: When a school district lays off certificated employees because of a reduction of services, pursuant to Education Code section 44955, are part-time employees with greater seniority entitled to “bump” a full-time employee with lesser seniority? The Court of Appeal agreed with the trial court that they are not and, therefore, affirms its judgment denying the writ of mandate sought by part-time certificated employees who were released while the school district retained a similarly credentialed full-time employee with lesser seniority. To read the full decision, go to: http://www.courtinfo.ca.gov/opinions/documents/A119738.PDF Court upholds District in Terminating Teacher More Less Seniority Than Others Bledsoe v. Biggs Unified School District [California Court of Appeal, 3^rd District] 1/16/09: In an action arising from defendant's termination of plaintiff-teacher, denial of petition for writ of administrative mandamus is affirmed where: 1) the trial court did not err in concluding defendant properly retained two teachers over whom plaintiff had seniority; and 2) defendant's error in failing to apply a tiebreaking criteria before laying off plaintiff was properly found by the ALJ not to be prejudicial. To read the entire opinion, go to: http://caselaw.lp.findlaw.com/data2/californiastatecases/c058222.pdf Cal. Teachers Assoc. v. Public Employ. Relations Bd. [California Court of Appeal, 4^th District] 1/5/09: The California Teachers Association (CTA) petitions for review of an order of the Public Employment Relations Board (PERB or the Board) which dismissed its own complaint against real party in interest Journey Charter School (Journey The complaint stemmed from CTA’s charge that Journey had violated the Educational Employment Relations Act (EERA) (Gov. Code, § 3540 et seq.), when it terminated the employment of three teachers: Stephanie Edwards, Paola Schouten and Marlene Nicholas. After an evidentiary hearing before an administrative law judge, and a review of his findings by the Board, PERB issued a decision dismissing the complaint. That dismissal was based upon the Boards factual conclusion the terminations had not been based upon the CTA unionization efforts, but were instead prompted solely by the letter sent to parent The Board then concluded the letter had not qualified as protected activity under the EERA, and thus the terminations were not actionable. CTA now argues (1) the evidence is insufficient to support the Boas factual determination that the teacher unionizing efforts with the CTA had not been the cause of their terminations; and (2) PERB erred in concluding the letter, which it believed was the cause, did not amount to protected conduct The Court of Appeal concluded the second claim has merit. PERB’s determination the teacher letter did not amount to protected activity cannot be reconciled with its own precedent cited in support of that determination, and thus its decision to dismiss the complaint was clearly erroneous. For the full decision, go to: http://www.courtinfo.ca.gov/opinions/documents/G040106.PDF Laid-Off Classified Employee Enjoy Preferential Reemployment Rights Over New Applicats in Any Classification of Available Positions, California Court of Appeal Holds Tucker v. Grossmont Union High School District [168 Cal.App.4^th 640 (2008), California Court of Appeal, 4^th District] 10/28/08: Grossmont Union High School District (District) appealed an order granting an extraordinary writ to require it to reemploy Charles Tucker, in preference to new applicants for any available position with the District for which Tucker applies and for which he is qualified. The Districted contended that under the plain meaning of relevant statutes Tucker does not have reemployment rights to positions outside of the class from which he was laid off. It argued that Ed Code § 45298 must be read together with § 45308, and analyzing the two statutes together leads to the conclusion that Tucker has preference to reemployment only for a position within the class from which he was laid off. The Court of Appeal disagreed, thus affirming the trial court judgment. Read the entire court decision at: http://www.courtinfo.ca.gov/opinions/documents/D050266.PDF Substitute Teacher Termination Case Vasquez v. Happy Valley Union School District [California Court of Appeals, 3^rd District] 2/1/08: The Happy Valley Union School District (District) terminated plaintiff’s employment as a substitute teacher in the 2005-2006 school year when she refused to accept being reclassified as a temporary teacher. She had taught for the District the previous two years as a substitute and temporary teacher, and she wanted a more permanent classification. She petitioned for a writ of mandate compelling the District to reinstate her and provide due process, claiming she was entitled to permanent employment based on statutory grounds. The trial court denied the petition. We affirm the trial court’s judgment, but we do so on a different basis. For the full decision, go to: http://www.courtinfo.ca.gov/opinions/documents/C054780.DOC 9th Circuit: IDEA relief doesn't preclude damages under § 504 Mark H. v. Lemahieu 1/17/08: The U.S. Court of Appeals for the Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA, GU, MP) has reversed a U.S. district court in Hawai'i that had ruled that the availability of injunctive relief under IDEA precludes a suit for damages under § 504 over actions that violate both statutes. However, the appeals court remanded the case to the lower court on the question of whether a plaintiff has a private right of action to sue to enforce the U.S. Department of Education's § 504 regulations. To read the full opinion, go to: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/031994FB3D16B224882573D30005CEDE/$file/0516236.pdf?openelement Jurupa Valley High boy fighting $377 truancy ticket found not guilty [Riverside Press-Enterprise] 1/15/08: A Jurupa Valley High School senior who protested a $377 truancy ticket he received late last year has been found not guilty by a Riverside County Superior Court commissioner. http://www.pe.com/localnews/riverside/stories/PE_News_Local_R_rmark15.34cf9ec.html Court Revives Lawsuit Against No Child Left Behind Law [New York Times] 1/8/08: A federal appeals court on Monday revived a legal challenge to the federal No Child Left Behind education law, saying that school districts have been justified in complaining that the law required them to pay for testing and other programs without providing sufficient federal money. For the full story, go to: http://www.nytimes.com/2008/01/08/education/08child.html School District of the City of Pontiac v. Secretary of the U.S. Department of Education [U.S. 6th Circuit Court of Appeals] In school districts' suit against the Secretary of Education seeking, inter alia, a judgment declaring that they need not comply with the No Child Left Behind Act's (NCLB) requirements where federal funds do not cover the increased costs of compliance, dismissal of the complaint for failure to state a claim upon which relief can be granted is reversed where: 1) statutes enacted under the Spending Clause must provide clear notice to the States of their liabilities should they decide to accept federal funding under those statutes; and 2) the NCLB fails to provide clear notice as to who bears the additional costs of compliance. To read the full opinion, go to: http://caselaw.lp.findlaw.com/data2/circs/6th/052708p.pdf Gately v. Cloverdale Unified School District [California State Court of Appeal, First District] 10/26/07: Appellant Kim Gately (Gately) filed a petition for writ of mandate seeking reinstatement, back pay and other relief after she was terminated from her position as business manager of respondent Cloverdale Unified School District (District). The primary issue was whether Gately was a “senior management employee” within the meaning of Education Code section 45108.5, such that she was entitled to notice of termination, pursuant to section 35031, at least 45 days before the expiration of the term of her three-year employment contract. The California State Court of Appeal affirmed the superior court’s order denying the writ. To read the case, Gately v. Cloverdale Unified School District, go to: http://www.courtinfo.ca.gov/opinions/documents/A116914.DOC Coach to pay abuse victim; district escapes responsibility [San Jose Mercury News] 10/6/07: A former Palo Alto student has won a $260,000 settlement in her lawsuit against the middle school teacher who molested her more than a decade ago, but she was forced to drop her claim that school officials did nothing to stop the abuse. For the full story, go to: http://www.mercurynews.com/localnewsheadlines/ci_7104007 Pocatello Education Association v. Heideman (9^th Circuit) 10/5/07: Payroll deductions were made from teacher’s association paychecks. The Voluntary Contributions Act in Idaho permits this except for deductions for “political activities.” The deductions were challenged as violative of the First Amendment. The 9^th Circuit Court of Appeals held that the Act, as applied to local government employees, is unconstitutional. It is a content-based law without a compelling justification. Further, it is not in a “nonpublic fora.” For the full story, go to: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/A3D34921272547F58825736B00481182/$file/0635004.pdf?openelement Calif. Supreme Court denies school's appeal in case over immigration editorial Decision lets stand lower court's interpretation of state free-expression law [Student Press Law Center[ 9/14/07: A lower court’s decisionupholding a high school student’s free-press rights will stand after the California Supreme Court declined to review the case, which began with a controversial opinion piece on race relations. In its Sept. 12 ruling, the court also denied the Novato Unified School District’s request to depublish the lower court’s decision, making the case available to use as precedent in future student press lawsuits. For the full story, go to: http://www.splc.org/newsflash.asp?id=1605 To read the lower court decision in Smith v. Novato Unified School District, go to: http://www.courtinfo.ca.gov/opinions/documents/A112083.PDF Stoner v. Santa Clara County Office of Education 9/7/07: School districts in California, including county offices of education, are arms of the state, and therefore not "persons" subject to qui tam liability under the False Claims Act, 31 U.S.C. section 3729 (FCA). However, state officials, sued for damages in their individual capacities, are "persons" within the meaning of the FCA, and the Eleventh Amendment does not bar such suits against them. Also, a pro se realtor cannot prosecute a qui tam action on behalf of the United States. To read the decision, go to: http://caselaw.lp.findlaw.com/data2/circs/9th/0415984p.pdf School mail cannot be used politically [Hayward Daily Review] 8/29/07: A court ruling Tuesday set a precedent as to how mailboxes will now be used in public school districts throughout the state. The California Court of Appeal, First Appellate District, reversed Alameda County Superior Court Judge Winifred Y. Smith's May 2006 ruling regarding the insertion of political endorsements in San Leandro school district mailboxes. For the full story, go to: http://www.insidebayarea.com/dailyreview/localnews/ci_6748191 Read the case: San Leandro Teachers v. San Leandro School District (8/28/07): The teacher’s union placed newsletters in teachers boxes that took a position on an upcoming school board election. Interpreting Ed Code section 7054, the district told the uioin, “[T]his letter serves to place you on notice that we will not allow the SLTA access to faculty mailboxes if any future distributions contain impermissible political endorsements.” The union objected. The issue the Court of Appeal focused on is whether the Legislature, in enacting section 7054, has limited a school’s internal mail system to nonpolitical uses only. They believe it has. Because the internal school mailbox system is a nonpublic forum and the District’s restrictions on its use are reasonable and viewpoint neutral, The Court of Appeal concluded that the District’s policy is constitutional. (“The First Amendment does not demand unrestricted access to a nonpublic forum merely because use of that forum may be the most efficient means of delivering the speaker’s message.”—from Cornelius v. NAACP Legal Defense & Ed. Fund (1985)) The 1^st District Court of Appeal therefore reversed the trial court’s order and reversed the order awarding attorney fees. To read the entire case, go to: http://www.courtinfo.ca.gov/opinions/documents/A114679.DOC State Supreme Court throws out school sex abuse lawsuit [North County Times] 8/21/07: A former Vista High School student cannot sue the Vista Unified School District in connection with allegations that her English teacher sexually abused her when she was a teenage student almost 30 years ago, the state Supreme Court ruled Monday. For the full story, go to: http://www.nctimes.com/articles/2007/08/21/news/top_stories/1_04_378_20_07.txt Shirk v. Vista Unified School District 8/20/07: A statutory provision, which "revived" for the calendar year 2003 those causes of action for childhood sexual molestation that would otherwise have been barred "solely" by expiration of the applicable statute of limitations, does not apply when a plaintiff suing a public entity has failed to first present a timely claim to the entity, as required by the government claims statute. For the full decision, go to: http://caselaw.lp.findlaw.com/data2/californiastatecases/s133687.pdf Federal Judge: Students Can Never Consent to Sex With Their Teachers [The Legal Intelligencer] 8/16/07: A Pennsylvania federal judge has refused to dismiss a civil rights suit brought by a woman who claims she had a 10-month affair with her band teacher, finding that a high school student can never truly consent to having a sexual relationship with a teacher whose class she is taking. As a result, U.S. District Judge Eduardo C. Robreno said, "a teacher who has sex with a high school student who is assigned to his class discriminates against the student on the basis of sex in violation of Title IX." For the full story, go to: http://www.law.com/jsp/article.jsp?id=1187168526120 Settlement entitles California's diabetic kids to care at school [San Francisco Chronicle] 8/9/07: Under the agreement between advocates for diabetics and the state Department of Education, thousands of diabetic California schoolchildren will be entitled to care from a nurse or a trained school staffer, who will conduct blood-sugar tests if the child is unable to do so and administer insulin or other needed medication. For the full story, go to http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/08/09/BA3FRF9PO.DTL Board overturns Antioch teen's expulsion Student who witnessed after-school fight between students, police can return to school [Contra Costa Times] 7/19/07: The Contra Costa County Board of Education has overturned the expulsion of a Deer Valley High School student who witnessed an after-school melee between students and police. Following a public hearing Wednesday, the board voted 3-1 to uphold the first of at least three appeals stemming from the March 7 incident at a service station a few blocks from the high school. The board's decision allows DeArmand Ellis III to return to Deer Valley High School in the fall. But his parents, who made the hearing public because they thought the expulsion was unfair, said that they will not allow him to attend the school because of what happened. For the full article, go to: http://www.contracostatimes.com/education/ci_6411533 [See story below, dated 5/4/07.] Lower court takes narrow view of 'Bong Hits' ruling [First Amendment Center] 7/18/07: In case involving student ridiculing principal on MySpace, district judge refuses to read high court's decision in Morse v. Frederick as expanding deference due school officials. Though we might never divine the meaning of “Bong Hits 4 Jesus,” efforts already have begun to interpret the recent U.S. Supreme Court decision upholding the right of school officials to punish that instance of nonsensical student speech. If the federal court ruling in Layshock v. Hermitage School District is any indication, that decision might threaten student rights less than some initially feared. For the full story, go to: http://www.firstamendmentcenter.org/commentary.aspx?id=18814 Read Layshock v. Hermitage School District (U.S.D.C. Pa. Western District) at: http://www.aclupa.org/downloads/CourtorderTRO.pdf The Supreme Court's "Bong Hits 4 Jesus" First Amendment Decision: How Its Betrayal of Free Speech Principles May Have Influenced A Recent Federal Appellate Decision [Writ] 7/9/07: FindLaw columnist, attorney, and author Julie Hilden discusses the Supreme Court's decision in the now-famous case involving a public school student who held up a "Bong Hits 4 Jesus" banner at a rally on a town street that his class had been let out early to attend. The Supreme Court upheld his punishment by his school, despite First Amendment objections. Hilden argues that, though Justices Kennedy and Alito attempted to cabin the effects of the ruling in a joint concurrence, that won't be possible -- for the distinction they and the rest of the five-Justice majority made, claiming the banner fell outside "political debate," is untenable and unstable. Hilden also considers what effect the Supreme Court's decision may have upon decisions by the federal appellate courts -- focusing in particular on a recent Second Circuit decision. For the full article, go to: http://writ.news.findlaw.com/hilden/20070709.html Speech Ruling Backs Schools But Protects Student Political Expression [Education Week] 6/27/07: The U.S. Supreme Court’s first major ruling in two decades on student speech was a decisive victory for schools and administrators in the case over a student’s display of a “Bong Hits 4 Jesus” banner, but the nuances in the justices’ opinions leave significant protection for more serious political and social expression by students. How the court’s June 25 ruling plays out for the latest generation of student-speech disputes, including those stemming from the culture wars over religious expression and gay rights, may take years to figure out, legal experts said. For the full article, go to: http://www.edweek.org/ew/articles/2007/06/26/43scotus_web.h26.html Read the decision by going to: http://www.supremecourtus.gov/opinions/06pdf/06-278.pdf http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=06-278 Morse v. Frederick [Supreme Court Times / “On the Docket”] 6/25/07: http://www.lawmemo.com/sct/06/Morse/ http://docket.medill.northwestern.edu/archives/004162.php The First Amendment Center has links to a variety of commentary: http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Morse_et_al_v_Frederick Students in public schools do not have the same rights as adults, but neither do they leave their constitutional protections at the schoolhouse gate, as the Court said in a landmark speech-rights ruling from Vietnam era, Tinker v. Des Moines Independent Community School District. The Court has limited what students can do in subsequent cases, saying they may not be disruptive or lewd or interfere with a school's basic educational mission. "The message on Frederick's banner is cryptic," Roberts wrote for the majority in the 5-4 ruling. "But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one." For the full story, go to: http://www.nytimes.com/2007/06/26/washington/26speech.html Free-speech advocates see silver lining to Supreme Court decision [Student Press Law Center] 6/26/07: Organizations that filed friend-of-the-court briefs react to high court's ruling. The free-expression organizations that filed friend-of-the-court briefs are interpreting the ruling as a narrow exception to students' reaffirmed free-speech rights. For the full story, go to: http://www.splc.org/newsflash.asp?id=1562 Justices Limit the Use of Race in School Plans for Integration [New York Times] 6/29/07: With competing blocs of justices claiming the mantle of Brown v. Board of Education, a bitterly divided Supreme Court declared Thursday that public school systems cannot seek to achieve or maintain integration through measures that take explicit account of a student’s race. For the full article, go to: http://www.nytimes.com/2007/06/29/washington/29scotus.html Read the decision at: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=05-908&friend=nytimes Districts Face Uncertainty in Maintaining Racially Diverse Schools [Education Week] 6/29/07: After a deeply divided U.S. Supreme Court ruled 5-4 to strike down two districts' racial integration plans, schools across the country wondered whether they must drastically change their own desegregation efforts. Although the court's four most conservative members sought to make all race-based decisions unconstitutional, Justice Anthony Kennedy, who cast the tie-breaking vote, narrowed their reach for now, saying race may sometimes be used to achieve diversity. For the full article, go to: http://www.edweek.org/ew/articles/2007/06/28/43scotusmain_web.h26.html The New York Times’ report is at: http://www.nytimes.com/2007/06/29/washington/29schools.html Justices Uphold Rules on High School Athletic Recruiting [Los Angeles Times] 6/21/07: The Supreme Court today upheld state rules that forbid high school coaches from recruiting athletes from other schools, saying there is no free-speech right to ignore the rules of fair competition. "The 1st Amendment does not excuse [a school] from abiding by the same anti-recruiting rule that governs the conduct of its sister schools," said Justice John Paul Stevens. "To hold otherwise would undermine the principle ... that high school football is a game. Games have rules." For the full story, go to: http://www.latimes.com/news/nationworld/nation/la-ex-highschool21jun21,0,6461999.story?coll=la-home-center Read the decision in the latest Brentwood case at: http://www.supremecourtus.gov/opinions/06pdf/06-427.pdf Read the N.Y. Times’ Linda Greenhouse’s article on the case at: http://www.nytimes.com/2007/06/22/sports/football/22recruit.html Judge will not end high schooler's 40-day suspension for YouTube video Student can still graduate if he meets certain criteria during suspension [Student Press Law Center] 5/31/07: A federal district court in Washington has denied a high school student’s request to end a 40-day suspension for his alleged involvement in a secretly taped video posted on YouTube.com mocking a teacher’s sexuality and hygiene. District Court Judge Marsha Pechman denied a temporary restraining order last Tuesday that would allow Gregory Requa, 18, to return to Kentridge High School. Requa is currently serving his suspension and filed the request on May 21. For the full story, go to: http://www.splc.org/newsflash.asp?id=1523 Garcetti having palpable effect on public-employee speech [First Amendment Center] 5/29/07: In his dissent last year in Garcetti v. Ceballos, Justice John Paul Stevens warned that the majority’s decision limiting public-employee First Amendment cases was “misguided.” A five-member majority ruled that public employees do not retain their First Amendment rights when their speech occurs as part of their official job duties. For the full story, go to: http://www.firstamendmentcenter.org/analysis.aspx?id=18606 Court rules Novato schools violated student's rights [Marin Independent Journal] 5/23/07: Novato school officials violated the free-speech rights of a student by condemning an opinion article he wrote in the student newspaper opposing illegal immigration, a state appellate court ruled Tuesday. The decision reverses a 2005 ruling by Marin Superior Court Judge John Sutro that favored school officials and ordered that the student, Andrew Smith, and his father pay more than $20,981 in litigation costs to the Novato Unified School District. For the full story, go to: http://www.marinij.com/novato/ci_5964226 Read the decision in Smith v. Novato Unified School District at: http://caselaw.lp.findlaw.com/data2/californiastatecases/a112083.pdf Legal Victory for Families of Disabled Students [New York Times] 5/22/07: A Supreme Court decision on Monday gave parents of children with disabilities the right to go to court without a lawyer to challenge their public school district’s individualized plan for their child’s education. The Supreme Court’s ruling will therefore change the status quo in many parts of the country, opening federal courthouse doors that were previously closed to parents. For the full story, go to: http://www.nytimes.com/2007/05/22/washington/22scotus.html Read the decision in Winkelman v. Parma City School District: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=05-983 Judge to reject test suit Districts wanted state to provide exams in languages other than English [Salinas Californian] 5/17/07: A bid by the Alisal Union and Salinas Union High School districts to give their predominantly Spanish-speaking students state achievement tests in their native tongue suffered a setback this week. For the full story, go to: http://www.californianonline.com/apps/pbcs.dll/article?AID=/20070517/NEWS01/705170320/1002 Ruling: Principal has no libel case against superintendent [Education Week] 5/15/07: A former Los Angeles high school principal, who said his supervisor's criticism of violence at his school libeled him, has no case, a state appeals court ruled. The court upheld a lower court's dismissal of Norman K. Morrow's suit, which was filed over the superintendent's comments in the Los Angeles Times that "the principal's handling of the recent violence had 'accelerated' a decision to replace him." For the full story, go to: http://www.edweek.org/ew/articles/2007/05/16/37law-1.h26.html Read the case, Morrow v. Los Angeles School District, by going to: http://www.courtinfo.ca.gov/opinions/documents/B192627.PDF Teasing victim gets no damages Judge rules no laws were broken in case of girl who was disciplined for saying 'That's so gay' [Contra Costa Times / Santa Rosa Press Democrat] 5/16/07: A Sonoma County judge ruled Tuesday that a Mormon high school student who sued after being disciplined and then mercilessly teased for using the phrase "That's so gay" was not entitled to monetary damages. Superior Court Judge Elaine Rushing said that though she sympathized with 18-year-old Rebekah Rice for the ridicule she experienced at Maria Carrillo High School, her lawyers failed to prove that school administrators violated any state laws or singled the girl out for punishment. For the full story, go to: http://www.contracostatimes.com/education/ci_5908158 http://www1.pressdemocrat.com/apps/pbcs.dll/article?AID=/20070516/NEWS/705160393&SearchID=73281328294068 Review an older story on this case (3/2/07, AP/First Amendment Center): http://www.firstamendmentcenter.org/news.aspx?id=18230 Read Charles C. Haynes’ “A moral battleground, a civil discourse” (3/20/06): http://www.firstamendmentcenter.org/commentary.aspx?id=16664 Dismissed grade lawsuit a victory for all, teacher says [Charleston Daily Mail] 5/9/07: A West Virginia judge this week threw out a lawsuit against a veteran teacher for giving a student a failing grade for missing a biology project deadline. "We cannot be effective in the classroom while harboring paranoia about parents second-guessing grades or every mark we make on a paper," teacher Jane Schultz said. For the full story, go to: http://www.dailymail.com/story/News/2007050924/Teacher-in-leaf-collection-lawsuit-expresses-relief/ Student has laundry list of offenses Public expulsion hearing reveals 55 disciplinary actions taken against 17-year-old since 2003 [Contra Costa Times] 5/4/07: A 17-year-old Deer Valley High student who police say triggered an after-school melee two months ago had been disciplined by school officials 55 times for various reasons since 2003, according to testimony at a public expulsion hearing Thursday. For the full story, go to: http://www.contracostatimes.com/education/ci_5816844 See the story above, dated 7/19/07. 4th Circuit backs removal of teacher's religious postings [Associated Press / First Amendment Center] 5/3/07: School officials did not violate a Virginia teacher's free-speech rights when they removed Christian-themed postings from his classroom, a federal appeals court ruled yesterday. The postings included a flier publicizing the National Day of Prayer, a depiction of George Washington praying at Valley Forge, and articles about President George W. Bush's religious faith and former Attorney General John Ashcroft's prayer meetings with his employees. For the full story, go to: http://www.firstamendmentcenter.org/news.aspx?id=18513 Read the decision in Lee v. York County School Division: http://pacer.ca4.uscourts.gov/opinion.pdf/061363.P.pdf Federal judge upholds school's ban on anti-gay T-shirt [AP / First Amendment Center] 4/18/07: Two Neuqua Valley (Chicago area) High School students won’t be able to wear T-shirts saying “Be Happy, Not Gay,” to school tomorrow following a judge’s ruling. U.S. District Judge William T. Hart ruled in favor of the high school yesterday on a preliminary injunction that would have allowed the students to wear the shirts the day after today’s National Day of Silence. For the full story, go to: http://www.firstamendmentcenter.org/news.aspx?id=18434 A Student Who Posted Profanities About Her School Principal on MySpace Wins Before The Indiana Court of Appeals Why the State Constitution Protected Her, And How She Would Have Fared Under The First Amendment [Writ / Findlaw] 4/16/07: Julie Hilden discusses a recent case in which an Indiana appellate court removed a middle-school student's "juvenile delinquent" designation because it had been based upon an exercise of her right to free speech on MySpace. Though the girl's comments were profane, the court ruled that they also counted as political speech, because they took issue with her public school's anti-piercing policy. Though the case was decided solely under the Indiana Constitution, Hilden also analyzes how the student's First Amendment claims might have fared, in light of the issues raised in the pending "Bong Hits 4 Jesus" banner decision -- another case in which (arguably) anti-government speech resulted in a public school student's punishment. For the full article, go to: http://writ.news.findlaw.com/hilden/20070416.html California Court Upholds Neighborhood-Based School Integration: A Possible Alternative If, As Many Expect, the Supreme Court Strikes Down More Conventional Race-Based Pupil Assignment [Writ] 4/13/07: Professor Vikram Amar discusses an interesting California ruling allowing a public school district to assign pupils to schools based not on their own race, but on the racial mix of persons in their immediate neighborhoods. Amar contrasts this pupil assignment system to two other systems, in Seattle and Louisville, upon which the U.S. Supreme Court will rule this Term. Those systems expressly allow pupils to be assigned to schools based on the pupils' own race -- with the goal of matching the district's diversity in each of its individual schools. Amar considers whether, from the perspective of the U.S. Constitution's Equal Protection Clause, one type of system is more likely to be held constitutional than the other. For the full article, go to: http://writ.lp.findlaw.com/amar/20070413.html Macy v. Hopkins Co. School Board of Educ. [U.S. 6th Circuit Court of Appeals] 4/12/07: In an action brought by a physical education teacher alleging that a school board violated federal and state law by firing her because she was disabled and in retaliation for protected activities, summary judgment for defendant is affirmed where plaintiff failed to present evidence from which a reasonable jury could conclude that the board's proffered reason for firing her was pretextual, and she forfeited her retaliation claims and state-law claims. To read the case, go to: http://caselaw.lp.findlaw.com/data2/circs/6th/065722p.pdf L.A. Unified found liable in boy's paralysis [Los Angeles Times] 4/9/07: District is ordered to pay $7.6 million for an incident in which the child had a seizure on campus and subsequent CPR was ineffective. For the full story, go to: http://www.latimes.com/news/local/la-me-seizure9apr09,1,910695.story?coll=la-headlines-california C.S.E.A. v. Livingston Union School District [California 5^th Appellate District] 4/4/07: In suit alleging wrongful denial of a due process hearing in connection with individual plaintiff's disciplinary termination from employment, denial of petition for writ of mandate is reversed as defendants' policies did not provide plaintiff due process of law. To read the opinion, go to: http://caselaw.lp.findlaw.com/data2/californiastatecases/f049582.pdf Stewart v. Independent School District No. 196 [U.S. 8th Circuit Court of Appeals] 4/6/07: In an action raising claims under the anti-retaliation provisions of the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA), summary judgment for defendant-school district is affirmed where: 1) the school district set forth legitimate grounds for plaintiff's transfer, and plaintiff failed to the reasons were merely pretexts to hide an impermissible, retaliatory motive; and 2) any adverse conditions in January 2005 were simply too far removed in time from the filing of plaintiff's December 2002 EEOC complaint to establish a causal connection. To read the opinion, go to: http://caselaw.lp.findlaw.com/data2/circs/8th/061870p.pdf Ruling: School officials can't ban student's religious fliers [Washington Post] 4/2/07: A school district in upstate New York violated a fourth-grader's constitutional rights after it refused to allow her to distribute fliers carrying a religious message, a federal judge ruled. Nicole Bloodgood tried to get permission for her daughter to distribute homemade religious fliers to other elementary students, but school officials refused and said they feared students and other parents might think the district endorsed the flier's religious statements, according to the lawsuit. For the full story, go to: http://www.washingtonpost.com/wp-dyn/content/article/2007/04/02/AR2007040200833.html Heschler v. Sacramento City Unified School District [California 3^rd Appellate District] 4/3/07: Denial of petition for writ of mandate seeking plaintiff's reinstatement as a teacher for defendant-district is reversed as using certified mail to send notice of decision not to retain plaintiff contravened the settled principle that, where a statute is silent as to the method of notice, personal notice is required. To read the opinion, go to: http://caselaw.lp.findlaw.com/data2/californiastatecases/c050940.pdf Jury awards $1.4M to teacher who was punished for refusing to change failing grades [AP / Findlaw] 4/3/07: A Louisiana school system must pay more than $1.4 million (€1.05 million) to an English teacher who was suspended and demoted after refusing to change the Ds and Fs she gave to 70 percent of her students, a federal jury has found. For the full story, go to: http://news.lp.findlaw.com/ap/o/51/03-30-2007/01e1000e17d25c11.html C.T.A. v. Vallejo School District [California 1^st Appellate District] 3/29/07: May teachers who serve under provisional credentials be classified as “probationary” for purposes of the Education Code? And, if so, are such provisionally credentialed teachers entitled to the statutory layoff rights the Code provides to fully credentialed probationary teachers? Because the Legislature has sharply limited school districts’ ability to hire temporary teachers, and there is no evidence the teachers in this case fell within the narrow categories of temporary employment defined in the Education Code, they fell within the default classification of “probationary.” (§ 44915.) The Code gives probationary teachers a number of rights and protections, including certain protections in the event of a layoff (§§ 44949, 44955, 44957), and the statutes in question do not distinguish between probationary teachers based on the status of their credentials. Accordingly, because the dismissed teachers were denied their statutory rights as probationary employees of the District, we shall reverse the judgment and remand for further proceedings. To read the opinion, go to: http://caselaw.lp.findlaw.com/data2/californiastatecases/a110721.pdf California exit exam appeal review set for July [San Francisco Chronicle] 5/26/06: The California Court of Appeal announced Thursday it would review on July 25 a legal challenge to the state exit exam, reinstated by the state Supreme Court earlier this week. With graduation ceremonies looming, the attorney who originally filed suit against the exam has now asked the court for an early decision on whether it's fair to deny diplomas to some students before even reviewing the case. http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/05/26/EXITEXAM.TMP Fields v. Palmdale Sch. Dist. (9^th Circuit) 5/17/06: A prior opinion, holding that parents of school children did not possess, under the Substantive Due Process Clause or the right to privacy, a constitutional right to limit the information that public schools make available to students, is reaffirmed with amendments to specific language in the opinion. “…[A]s other courts have held, that parents of public school children are not possessed of a constitutional right, either under the Substantive Due Process Clause or the related right to privacy, to restrict the public schools from providing information on the subject of sex. No federal court has ever found such a right in the Substantive Due Process Clause of the Constitution or in the right to privacy. To hold otherwise would misperceive the nature of the constitutional right at issue….What information schools provide is a matter for the school boards, not the courts, to decide.” To read the entire opinion, go to: http://caselaw.lp.findlaw.com/data2/circs/9th/0356499p.pdf Claims Against Schools Must be Timely, Court Says: You Snooze, You Lose V. C. v. Los Angeles Unified Sch. Dist. (Cal. 2d App. Dist.) 4/18/06: Dismissal with prejudice of complaint, involving sexual molestation of minor by middle school teacher, is affirmed where plaintiff minor neither presented a claim within six months of the accrual of her cause of action, nor sought leave to present a late claim within one year of accrual. Moreover, there is no basis for her to amend her complaint to allege that her cause of action did not accrue by reason of either delayed discovery or equitable estoppel. Read the opinions at: http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2006/b184022.html http://caselaw.lp.findlaw.com/data2/californiastatecases/b184022.pdf Lawyer-Dad's Request for Fees Is Rejected in Daughter's Case [New York Law Journal] 5/5/06: A father who is a lawyer and successfully represented his daughter in a dispute with a local public school district has lost his bid for attorney fees under the Individuals with Disabilities in Education Act. The 2nd Circuit, following the precedent of two other circuits (the 3^rd and 4^th), held for the first time that the purpose of awarding attorney fees is to enable plaintiffs to obtain competent counsel and that awarding a parent fees could discourage plaintiffs' use of independent, objective lawyers. For the full story, go to: http://www.law.com/jsp/article.jsp?id=1146733527963 9th Circuit: Coach's critics' speech protected [Associated Press / Freedom Forum] 5/2/06: Eight members of the 2000-2001 Clatskanie High School basketball team were constitutionally entitled to criticize a coach whom they believed was being verbally abusive, a 9th U.S. Circuit Court of Appeals panel ruled in a decision issued yesterday. The ruling from the San Francisco-based court overturns a verdict from U.S. District Court in Portland that found that team members who signed a petition calling for the firing of boys' varsity basketball coach Jeff Baughman were not protected under the First Amendment because "their speech did not involve a matter of public concern." For the full story, go to: http://www.firstamendmentcenter.org/news.aspx?id=16839 Read the ruling in Pinard v. Clatskanie School District at: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/2820AC7513A5168C8825716100572DA4/$file/0435574.pdf?openelement Maine high court reaffirms ban of state funds for parochial schools [Associated Press / Freedom Forum] 4/27/06: Maine's highest court yesterday upheld — once again — a state law banning state funding of religious schools. The Maine Supreme Judicial Court ruled that restrictions on tuition vouchers continue to be a "valid, constitutional enactment." Justice Robert Clifford dissented, saying a 2002 U.S. Supreme Court ruling invalidated Maine's law. For the full story, go to: http://www.firstamendmentcenter.org/news.aspx?id=16821 Hinduism lawsuit loses in court again [San Francisco Chronicle] 4/22/06: A Sacramento judge handed another setback Friday to a lawsuit aimed at blocking California's new sixth-grade textbooks because of how they portray ancient Hinduism. A request for a preliminary injunction by the Hindu American Foundation against the state Board of Education was rejected by Sacramento County Superior Court Judge Patrick Marlette. For the full story, go to: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/04/22/BACADIGEST3.DTL 9^th Circuit Rules for School District in Demeaning T-Shirt Case Harper v. Poway Unified Sch. Dist. (9^th Circuit) 4/20/06: High schools may prohibit on campuses and in classes the wearing of T-shirts which flaunt demeaning slogans, phrases or aphorisms that relate to a core characteristic of particularly vulnerable students and may cause them significant injury. To read the case, go to: http://caselaw.lp.findlaw.com/data2/circs/9th/0457037p.pdf Supreme Court to Hear Oral Argument in Arlington v. Murphy; Is Deaf Child Entitled to a Teacher? [Wrightslaw.com] 4/18/06: At 10:00 a.m. on Wednesday, April 19, 2006, the U. S. Supreme Court heard Oral Argument in Arlington Central School District v. Murphy. Since the Court granted certiorari on January 6, 2006, this case is on a fast track. The Court will decide whether parents who prevail in special education cases may be reimbursed for the costs of their experts and/or educational consultants. This decision is likely to have enormous implications for parents and educational consultants, evaluators, advocates, and other individuals who assist parents during special education due process hearings. For the full story, go to: http://www.wrightslaw.com/nltr/06/nl.0418.htm Teaching with University Internship Counts Toward Tenure, California Court Says Peoples v. San Diego Unified Sch. Dist. (Cal. 4th App. Dist.) 4/10/06: Does employment under a university internship credential count toward the two-year requirement for obtaining permanent employment set forth in section 44929.21, subdivision (b)? The 4^th District Court of Appeal said “Yes.” The crucial question in this case is not the teacher’s status during her employment under the internship credential, but how (and whether) that prior employment counts in reaching the consecutive two-year requirement for purpose of obtaining tenure and triggering the March 15 notice requirement. This question is easily answered because the Legislature enacted a code section on this precise issue. (§ 44466.) Section 44466 specifically prescribes the conditions under which a teacher employed under a university internship credential, and then hired during the consecutive year with a clear credential, acquires tenure. It reads: "An intern shall not acquire tenure while serving on an internship credential. A person who, after completing a teaching internship program authorized pursuant to this article [the university intern program], is employed for at least one complete school year in a position requiring certification qualifications by the school district that employed the person as an intern during the immediately preceding school year and is reelected for the next succeeding school year to a position requiring certification qualifications shall, at the commencement of the succeeding school year, acquire tenure." (§ 44466.) Under this provision, the final year of employment under a university internship credential counts for one year towards tenure for purposes of applying section 44929.21, subdivision (b) if the teacher is employed during the next consecutive year under a clear credential. (§ 44466.) To read the full opinion, go to: http://caselaw.lp.findlaw.com/data2/californiastatecases/d046848.doc http://caselaw.lp.findlaw.com/data2/californiastatecases/d046848.pdf Avila v. Citrus Cmty. Coll. Dist., 4/6/06: The statutory immunity conferred on public entities for an injury occurring during a "hazardous recreational activity" pursuant to Government Code section 831.7 does not apply to injuries sustained during supervised school sports. In interscholastic and intercollegiate competition, the host school and its agents owe a duty to home and visiting players alike to, at a minimum, not increase the risks inherent in the sport. http://caselaw.lp.findlaw.com/data2/californiastatecases/s119575.doc http://caselaw.lp.findlaw.com/data2/californiastatecases/s119575.pdf Dismissed Athletic Director's Retaliation Claim Reinstated in Hazing Case [New York Law Journal] 4/7/06: An athletic director whose position was abolished after he spoke out against hazing by high school football players has been given a second chance to sue a school district. The 2nd Circuit reinstated Louis J. Cioffi's retaliation claim, finding that he was engaging in protected speech when he wrote a letter criticizing a football coach's management of his players and spoke at a news conference on the school system's handling of a hazing incident involving a 14-year-old boy. For the full story, go to: http://www.law.com/jsp/article.jsp?id=1144330160528 http://www.firstamendmentcenter.org/news.aspx?id=16742 Read the case at: http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA0LTU1OTMtY3Zfb3BuLnBkZg==/04-5593-cv_opn.pdf#xml=http://10.213.23.111:8080/isysquery/irl2c92/2/hilite Wisconsin joins NCLB lawsuit [San Jose Mercury News / Associated Press] 4/4/06: Wisconsin has joined a lawsuit filed by the National Education Association and school districts in three other states that alleges NCLB mandates are illegal because the requirements are underfunded. Plaintiffs are appealing a federal judge's dismissal of the suit last November. For the full story, go to: http://www.mercurynews.com/mld/mercurynews/14263399.htm Whistleblower Principal Can Sue for Retaliation Court Interprets what "materially affect the terms and conditions of employment” means Patten v. Grant Joint Union High Sch. Dist. (Cal. 3d App. Dist.) 12/19/05: To establish an adverse employment action for purposes of employment retaliation lawsuits under Labor Code section 1102.5(b) requires that such adverse employment action "materially affect the terms and conditions of employment." Section 1102.5, subdivision (b) provides: “No employer shall retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or violation or noncompliance with a state or federal regulation.” Principal Colleen Patten was the principal at Foothill Farms Junior High School during the 2000 and 2001 school years. The year before Patten arrived as principal, Foothill had been designated an underperforming school. This made Foothill eligible for additional special funding under the Immediate Intervention/Underperforming Schools Program (II/USP). Patten contends she disclosed four legal violations for which Grant retaliated against her. When she disclosed the alleged violations she was transferred to another site. After an illness she quit and she later sued. The trial court determined that the school district had not retaliated against Patten by subjecting her to an adverse employment action because the wages, benefits and duties (as set forth by the job descriptions) of her new position were the same as at Foothill, and both schools were junior high schools. So, was this an adverse employment action? The Court of Appeal said: The “materiality” test encompasses not only ultimate employment decisions, “but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” Minor or relatively trivial adverse actions by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee do not materially affect the terms or conditions of employment. But the terms or conditions of employment “must be interpreted liberally and with a reasonable appreciation of the realities of the workplace [to further ‘the fundamental antidiscrimination purposes of the FEHA’].” In short, if the “materiality” test is good enough for the fundamental purposes of FEHA, it’s good enough for section 1102.5(b). To read the full text of this opinion, go to: http://caselaw.lp.findlaw.com/data2/californiastatecases/c048156.doc http://caselaw.lp.findlaw.com/data2/californiastatecases/c048156.pdf Services Employees Int’l v. Cupertino Union School District [Cal.6^th App., 8/3/05]: A right to arbitrate is not waived when a timely but procedurally defective demand for arbitration is made. To read the full opinion, go to: `http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2005/h028164.html` `http://caselaw.lp.findlaw.com/data2/californiastatecases/h028164.pdf` This case presents the issue of whether the right to arbitrate is waived when a timely but procedurally defective demand for arbitration is made. Our resolution of the dispute requires us to consider a clash between important public policies. On the one hand, where the arbitration agreement specifies a time limit for making a demand, courts should uphold the parties’ bargain by finding a waiver of the right to arbitrate where the demand is untimely: “[U]nless legally excused, a contracting party cannot compel arbitration when it has failed to make a timely demand.” (Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 310-311 (Platt).) On the other hand, arbitration is strongly favored under California law, claims of arbitration waiver are closely scrutinized, and the part claiming such waiver bears a heavy proof burden. (Saint Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195 (Saint Agnes).) Service Employees International Union, Local 715, AFL-CIO (Union) pursued a grievance with the Cupertino Union School District (District) through multiple steps required under their collective bargaining agreement (CBA). When the grievance was not resolved to its satisfaction, Union submitted to District two letters—the first being Union’s expressed intent to arbitrate the matter in the future once the grievance had been formally denied, and the second being a clear demand for arbitration from Union’s attorney. Both letters were timely under the CBA but neither complied with its procedural requirements (i.e., transmission of notice to a state mediation service). Accordingly, District refused to arbitrate, contending that Union had waived its arbitration rights,1 and that the grievance was deemed “settled” under the terms of the CBA. Union petitioned the court below to compel arbitration. The court, however, agreed with District that Union forfeited its arbitration rights by failing to submit a timely demand that complied with the procedure outlined in the CBA. On appeal, we examine the nature and extent of Union’s failure to comply with the CBA’s arbitration demand requirements and whether a proper application of the holding in Platt, supra, 6 Cal.4th 307, compels the conclusion that Union forfeited the right to arbitrate the instant grievance. We conclude that Platt and the cases it relied upon are not controlling and that Union did not forfeit its arbitration rights by submitting a timely but procedurally defective demand. We therefore reverse the order denying the petition to compel arbitration. `Benjamin G. v. Special Education Hearing Office[Cal. 2d App. Dist. 8/1/05]: Under the IDEA, parents are entitled to have their expert observe their child's proposed placement in an individualized education program before they participate in the administrative hearing at which the propriety of the proposed placement will be determined. “`Because the parents have a statutory right to have their expert testify at their administrative hearing, they ipso facto are entitled to have their expert observe the proposed placement before they participate in the administrative hearing at which the propriety of the proposed placement will be determined. We reverse.”`To read the full text of this opinion, go to:` `http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2005/b179322.html` `http://caselaw.lp.findlaw.com/data2/californiastatecases/B179322.PDF`
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