Rich Kitchens, Attorney at Law 925-338-1858
Attorney at Law
Attorney at Law
4418 Water Oak Ct.
Concord, CA. 94521
The content on this website is intended for educational and informational purposes only. We focus on California law. Nothing on the website shall be construed to create an attorney-client relationship. Readers are responsible for obtaining legal advice from their own legal counsel.
While there were plenty of legal actions undertaken during the 2013-2014 school year, some court cases in California and in the 9th Circuit stand out. Here are our reports from the major appellate cases from 2013-2014:
DeYoung v. Commission on Professional Competence—Failure to produce written charges against teacher was not a substantive error
A tenured teacher who was being terminated for, among other things, allegedly striking a student and calling students “stupid,” was orally told of the allegations, received a letter from the District regarding the charges, and he was placed on administrative leave. The District met with the teacher in a “Skelly” meeting and then dismissed him and then served on him a written accusation proposing dismissal. The teacher argued he should have received written charges prior to the District Board voting, not after the vote to dismiss. The Court of Appeal affirmed the trial court determination that whatever error occurred was harmless, that the charges were clear from the start, and the teacher received a full evidentiary hearing. (California Court of Appeal—2nd District, 7/30/14)
Hector F. v. El Centro Elementary School District—Parent (as taxpayer and citizen) has standing to sue after student left school to enforce antiharassment laws
An elementary special ed student who spoke English only as a second language was the victim of abuse from other kids, according the child’s father. After complaining to school officials, the father alleges school officials did not intervene and provide any protection for Brian, but instead suggested Brian change classrooms. The trial court dismissed the charges because the student no longer attends the elementary school. The appeal court reversed this ruling: “As a citizen and taxpayer Hector has standing to seek enforcement of laws in which there is an identified public as well as private interest. The statutory provisions asserted by Hector articulate a well identified public interest in maintaining a system of taxpayer funded public education which is free of the destructive influence of discrimination, harassment and bullying.” The father’s “attempt to enforce the antidiscrimination and antiharassment statutes adopted by the Legislature falls squarely within the public interest exception to the rule which otherwise requires a beneficial interest in mandate actions.”
LAUSD v. Superior Court—Court of Appeal agrees with LAUSD to keep teacher data private
Data regarding student performance, disaggregated by teacher, may be kept away from the public, pursuant to the Public Records Act.
Read the California Appellate Report, 7/23/14:
The decision in LAUSD v. Superior Court can be found at:
Harris v. Quinn—Supreme Court Decision Signals Trouble for Teachers; Unions Down the Road
In the 5-4 decision, the high court ruled that eight Illinois home health-care workers cannot be required to contribute union bargaining fees.
Read the CTA blog [7/1/14] on this case:
Vergara v. California—Trial Court Rules that Tenure and Seniority Laws Violate the Equal Protection Guarantee for Poor and Minority Students
This controversial case (see more at my California Teacher Law Blog: http://teacherlawcalifornia.blogspot.com/p/the-vergara-case.html), will certainly be appealed by either the State or the CTA (or both). The judge ruled, after a two-month trial, that five statutes providing teachers with tenure very quickly and make it extremely difficult to fire ineffective teachers, protect the more experienced teachers from economic-based layoffs at the expense of newly hired teachers, disproportionately affect poor and minority students and thus violate the state’s equal protection clause and the guarantee of an “equal education” promised in Brown v. Board of Education (1954), the Serrano v. Priest cases of the 1970s, and the Butt v. California (1992) case.
Dariano v. Morgan Hill Unified School District—School’s Ban on U.S. Flag Shirts on Cinco de Mayo Upheld by 9th Circuit
The 9th Circuit upheld the school’s decision to force the students who were wearing the U.S. flag shirts to stop doing so as there a real risk of violence on the school which was celebrating Cinco de Mayo.
The decision is at:
Much has been written about this case elsewhere. See:
Heckler's Vetoes in High School [Jurist, 3/14/14]: Ashutosh Bhagwat argues the decision in Dariano may have constituted a heckler's veto over the rights of free speech
The JURIST report (2/28/14) on this case is here:
Legal blogger Eugene Volokh, at the “Volokh Conspiracy,” has this comment (2/27/14):
The NSBA “Legal Clips” page on the case and decision can be found at:
Attached to the original complaint filed in 2010, you can find exhibits with pictures of the shirts with the American flag that are in question:
LAUSD v. Superior Court (Los Angeles Times Real party in Interest)—District’s Teacher Ratings Survive Public Records Act challenge by LA Times
The 2nd District Court of Appeal overturned the trial court and ruled that the public has no right to know the names of Los Angeles Unified School District teachers in connection with their job performance ratings. The Los Angeles Times had sued to obtain this information under the Public Records Act, asserting the public interest of parents and others. The Court ruled, however, that the confidentiality of the teachers served a stronger public interest.
Read the California Appellate Report comment at:
LAUSD v. Superior Court can be found at:
Nathan G. v. Clovis USD—Appeal court upholds students’ involuntary transfer to continuation school
When a school attempts to transfer a student involuntarily to a continuation school (Ed.C. sec. 48432.5), a hearing should be held (if requested), but the school is not required to exhaust “all other mans of correction” before a student can be transferred. While the right to an education is a “fundamental right” (and thus require an independent review by the Court), a transfer as in this case to another school does not deny the student a right to attend school. This means the Court has only to find “substantial evidence” that the school discipline of the student is entitled to deference by the Court.
Frudden v. Pilling—Public School can’t require Students to Display a Motto on their Uniforms
Public elementary school students had to wear a uniform that displayed the school motto, “Tomorrow’s Leaders.” This, the Court said, was “compelled speech” and subject to strict scrutiny review. The lower court had not exercised this level of review, and the case was sent back to the lower court. Further, the school allowed “nationally recognized youth organizations such as Boy Scouts or Girl Scouts on regular meeting days” to wear their non-school uniforms. This is a “content-based” exemption might also violate the First Amendment, and the lower court did not examine this, the lower court ruling was overturned.
The 9th Circuit decision is at:
Read: Public school can't require students to display a motto on their uniforms [Volokh Conspiracy / Trial Insider, 2/14/14]
You can read the original District Court ruling:
Read Professor Volokh (the advocate for the students in this case) essay: “Can Public Elementary School Require Students to Wear Shirts With Mottoes?”:
You can view the YouTube video of the oral argument in the 9th Circuit:
Demers v. Austin—9th Circuit holds Garcetti rule on public employee speech does not apply to teaching and academic writing
The 9th Circuit ruled that not all things that a public school employee writes and distributes in connection with his or her official duties are without 1st Amendment protections. Demers, a faculty member at Washington State University, had distributed a document for change to high-level administrators and media and others. He suffered negative employment actions, which he blamed on his distribution of the documents, and he alleged illegal retaliation that violated the 1st Amendment. Garcetti v. Ceballos (2006) had held that “when public employees make statement pursuant to their official duties, the employees are not speaking as citizens for 1st Amendment purposes, and the Constitution does not insulate their communication from employer discipline.” However, the 9th Circuit ruled in Demers that the Garcetti rule does not apply to “speech related to scholarship or teaching,” but rather the Pickering v. Board of Education (1968) test should apply. There, if the teacher can demonstrate that his or her speech was about a “matter of public concern,” then it is protected if the teacher’s interest “in commenting outweighs the interest of the State, as an employer, in promoting the efficiency of the [school].”
Read the “Verdict” piece, “Precisely How Much Academic Freedom Should (Does) the 1st Amendment Afford to Professors and Teachers at Public Schools?” by Professors Vikram Amar and Alan Brownstein at:
Wynar v. Douglas County School District—9th Circuit Upholds School Discipline Against Student for Sending Messages from Home to Friends
Landon Wynar, a high school sophomore, was suspended after he made sent increasingly violent and threatening instant messages from his home to his school friends. The 9th Circuit said that, when faced with an identifiable threat of school violence, schools could take disciplinary action in response to off-campus speech under the Tinker v. Des Moines (1969) rule that “schools may prohibit speech that ‘might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities’ or that collides ‘with the rights of other students to be secure and to be let alone.’
The court cited LaVine v. Blaine School District (2001) in which the schools temporary expulsion was upheld because of a poem written at home about a school shooting and suicide that the student showed to his English teacher.
Read Julie Hilden’s “Verdict” piece, “When is a Public School Student’s Online Speech About School Violence Cause for Concern?” at:
E.M. v. Pajaro Valley Unified School District—District Action Denying Special Education to Student Upheld by 9th Circuit
The 9th Circuit agreed the District had acted reasonably in determining that a student “did not qualify for special education services under the “specific learning disability” category because he lacked the required severe discrepancy between his intellectual ability and his achievement. Further, the student failed to show that the school district acted unreasonably in not considering him for benefits under the “other health impairment” category in 2005.
The decision in E.M. v. Pajaro Valley Unified School Dist. can be found at:
The decision in Walnut Valley USD v. Superior Court (Rowland USD) can be found at:
Court of Appeal Upholds District Classification of Coach as Temp Employee
High Court to Weigh Speech Rights of Public Officials
[School Law Blog]
The Nevada Supreme Court ruling in Carrigan v. Commission on Ethics for the State of Nevada is at:
Read Charlie Haynes’ (of the First Amendment Center) (“Garcetti would be unwelcome element in Nevada case”
California Court of Appeal, in split decision, rules in favor of school district in negligent hiring case involving high school counselor
C.A. v. William S. Hart Union High Sch. Dist. (CA 2nd district)
11/5/10: C.A., a minor student, filed a complaint naming as defendants a public high school, the school district, and an individual guidance counselor. The complaint alleged many causes of action, including negligence, negligent supervision, negligent hiring on behalf of the District and sexual battery, assault, and sexual harassment by the counselor. The student alleged that the District “knew that [the guidance counselor] had engaged in unlawful sexually-related conduct with minors in the past, and/or was continuing to engage in such conduct,” but failed to take reasonable steps to prevent further unlawful sexual conduct by the guidance counselor. The District demurred, and the trial court agreed with the District that there were no code sections to which the public District could be held responsible as the counselor behavior, as alleged, was outside the scope of her employment. Also, “[o]n the sexual harassment, Civil Code [sections] 51.9 and 52.4 don‘t provide a statutory basis for those kind [sic] of claims against a public entity.”
C.A. then appealed and the Court of Appeal affirmed the trial court decision. The Court of Appeal ruled that:
1. The facts alleged in the complaint do not support the vicarious liability of the School District.
2. No statute allows a direct action for negligence against the School District.
3. No mandatory duty subjects the School District to liability.
4. C.A.’s other causes of action also fail to state a claim.
However, the decision was not unanimous, and in a dissent it was opined that the Court of Appeal should clearly say that “the school district may be liable for breaching its duty to protect students from physical harm.” “Although the school district cannot be held liable for the intentional misconduct of the guidance counselor, it may be liable through respondeat superior for the negligence of other employees who were responsible for hiring, supervising, training, or retaining her.” The dissent argued that “[u]nder the Dailey-Hoyem-Randi W. trilogy, a school employee may be held personally liable for his or her negligence in failing to supervise students adequately, and the school district may be vicariously liable for the employee‘s negligence.”
To read the entire decision, go to:
Court of Appeals Applies Barthuli to Deny College Administrator Reinstatement
Agosto v. Bd. of Trustees of Grossmont-Cuyamaca [4th District Court of Appeal]
10/18/10: A college administrator requested a writ of mandate to compel reinstatement to his former position. The Court of Appeal concluded “the trial court correctly found Agosto did not have either a statutory right or property right to his position as a community college administrator and therefore was not entitled to a writ of mandate directing District to reinstate him to his former position.” The Court held that Barthuli v. Board of Trustees (1977) 19 Cal.3d 717 is controlling authority and it compared the college district administrator to public school administrators. “[A] community college administrator, like the school district administrator in Barthuli, does not have a right to reinstatement to an administrative position.” For the full opinion, go to:
Three DUIs constitutes "unfitness to teach" under Morrison, says California Court of Appeal
District to appeal ruling on classroom banners
[San Diego Union-Tribune]
The case is Johnson v. Poway Unified School District (2010 WL 768856 (S.D. Cal.)).
[School Law Blog]
The case is Caviness v. Horizon Community Learning Center and can be found at:
To read the full decision in Caviness, go to:
California Supreme Court rules (finally) and upholds District in school mailbox case
To read the story in the Oakland Tribune, go to:
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
Court upholds District in Terminating Teacher More Less Seniority Than Others
Cal. Teachers Assoc. v. Public Employ. Relations Bd.
[California Court of Appeal, 4th 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:
Rich Kitchens 4418 Water Oak Ct. Concord, CA. 94521 925-338-1858