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Sixth Circuit Rules IDEA Eligibility Is Necessary to Establish Prevailing Party Status

Attorney fees in IDEA due process cases are often the tail that wags the dog. Since pure money damages are often unavailable in IDEA cases, fee exposure is often the biggest out-of-pocket monetary item of exposure that school districts can face. At the same time, fee-shifting under 42 U.S.C. 1988 is, in many cases, what makes litigating due process hearings on the parents’ side financially viable. Thus, many IDEA due process hearing cases relate, not to questions about substantive and procedural compliance with the IDEA itself, but rather fee liability.

abundance achievement bank banknotes
Attorney fee liability is an important aspect of IDEA due process litigation.

As under other federal civil rights statutes, the right to fee reimbursement hinges on a litigant’s attaining the status of a “prevailing party.” Now, the law in the Sixth Circuit and elsewhere makes it clear that one does not have to win on every issue raised in a suit to earn the right to reimbursement of attorney fees. Rather, a party must only prevail on a significant issue that results in some material benefit.

Notably, under the IDEA, the definition of a prevailing party is restricted to one “who is the parent of a child with a disability[.]” 20 U.S.C. 1415(i)(3)(B)(i)(I). Recently, the Sixth Circuit interpreted this language to hold that eligibility is required to establish “prevailing party” status in IDEA cases. In Burton v. Cleveland Heights University Board of Education, 119 LRP 25157 (6th Cir. 2019) the Court rejected a student’s fee petition since IDEA eligibility, and thus entitlement to tangible relief, had not been established. In that case, the parent filed a due process action alleging, among other things, that a student qualified as a “child with a disability” and was entitled to relief for an alleged denial of FAPE. After a full hearing, the state-level hearing officer ruled that the child had a qualifying disability, but was not in fact eligible under the IDEA for relief or services because the proof was insufficient to show a need for specially designed instruction.

The parents then appealed to federal court and sought fees. They argued that the finding that the child’s disability fell into a protected category under the IDEA was sufficient to qualify them as prevailing parties and fee reimbursement. Furthermore, they argued that the hearing officer ordered the school district to evaluate the student to determine her eligibility under the IDEA. Yet, both the Northern District of Ohio and, later, the Sixth Circuit rejected this argument. Although the parents arguably had succeeded on certain elements of their claims, the Court held that the record was insufficient to demonstrate the student’s eligibility under the IDEA. Citing the plain language of the statute and the decisions of several other Circuit Courts, the Court held that edibility was required to attain prevailing party status for purposes of recovering attorney fees.

Eligibility is often a central issue in IDEA cases. In such cases, the Burton decision could make it harder for parents to establish a right to fee reimbursement even when procedural violations occur. In other words, this decision is a good reminder for parents, school districts, and attorneys in the Sixth Circuit to never forget the fundamentals when litigating IDEA cases.

 

KY Pregnant Workers Act Soon to Become Effective

bathroom interior
This is a fabulous restroom. The Pregnant Workers Act, among other laws, would mandate that it should not also be a lactation room.

Legislation protecting the rights of pregnant and breastfeeding workers existed in several jurisdictions before this month. The Federal Pregnancy Discrimination Act mandated “reasonable accommodations” for employees affected by pregnancy, childbirth, or a related medical condition. Similarly, the Americans with Disabilities Act, prohibits discrimination against disabled workers, which includes those affected with pregnancy-related conditions, such as preeclampsia or gestational diabetes. Likewise, the Affordable Care Act, Section 7 of the Fair Labor Standards Act requires covered employers to allow employees to take unpaid breaks at work to express breast milk and to provide a clean, private place other than a bathroom for employees to express breast milk. Furthermore, at least two states in the Sixth Circuit, Ohio and Michigan, had included protections for pregnant and breastfeeding workers in their civil rights statutes.

On June 27th, however, Kentucky is the next state to see specific protections for pregnant and breastfeeding become operative law. The Pregnant Workers Act amends the Kentucky Civil Rights Act to mandate “reasonable accommodations” for pregnancy, childbirth, and related medical conditions, which includes “lactation or the need to express breast milk for a nursing child.” Like under other civil rights statutes, accommodations will be required under the employer can show that it would cause an “undue hardship” on its business or operation.

In terms of develop accommodations for employees, the Act requires the provision of notice to employees as to these protections and further mandates the following:

  1. An employee shall not be required to take leave from work if another reasonable accommodation can be provided;
  2. The employer and employee shall engage in a timely, good faith, and interactive process to determine effective reasonable accommodations; and
  3. If the employer has a policy to provide, would be required to provide, is currently providing, or has provided a similar accommodation to other classes of employees, then a rebuttable presumption is created that the accommodation does not impose an undue hardship on the employer.

Critically, other portions of the Kentucky Civil Rights Act remain unchanged. Thus, the private right of action and remedies, including damages and attorney fees, under KRS 344.450 are available to any employee who alleges protection under the Pregnant Workers Act. Furthermore, the Act continues to apply to any entity which employs more than 15 employees. Thus, the vast majority of schools and school districts will be responsible for complying with the Pregnant Workers Act.

More than 2/3 of teachers across the United States are women, so school districts in Kentucky should work with their board attorneys to become familiar with the requirements of the Pregnant Workers Act. As with all things, good planning and compassion go a long way in supporting employees through life transitions such as pregnancy and new parenthood. Now, the Pregnant Workers Act in Kentucky will require for workers as a matter of law.

KY Parent Volunteer Sues School for Allegedly Disrupting Breastfeeding

More and more, public spaces, companies, and entities are making efforts to accommodate breastfeeding mothers. As a recent example of this, you may have noticed if you’ve traveled in airports recently that small privacy pods are being installed so that breastfeeding mothers can pump or feed their babies in private. For many weary mothers traveling with babies or a bag of pumping supplies, this privacy option (that isn’t a bathroom stall) is probably much appreciated.

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In honor of Mother’s Day, our posts for May will discuss accommodations for expectant and breastfeeding mothers. 

Still, even if private accommodations are available, does this mean breastfeeding mothers should be required to use them? That is the issue in a civil lawsuit just filed against the Jefferson County Schools in Louisville, Kentucky. The suit, filed by a parent volunteer and member of the school’s site-based council, alleges that the District violated KRS 211.755 when its officials asked the mother to move to private office to feed her infant daughter. According to an interview given by the plaintiff and her attorney, this conversation occurred after she had started feeding her daughter. After the incident, the plaintiff alleges that she was told by school officials that breatsfeeding in the future while volunteering would need to occur in a private office. As a result of this encounter, the plaintiff claims she has missed out on other volunteer opportunities and is seeking money damages and an injunction.

Notably, while KRS 211.755 certainly appears to protect the rights of mothers to breastfeed or express milk and prohibits interference with the act of breastfeeding, there are no judicial interpretations of its meaning. Moreover, the protections apply only in spaces where the mother is “otherwise authorized to be.” Since no court has yet to interpret this phrase, it is not clear to what extent a public entity or school could make advance arrangements or craft policies to address breastfeeding by members of the public or volunteers. It is also not clear what rises to the level of “interference” under KRS 211.755(3).

Furthermore, no remedy for violations of KRS 211.755 is stated in the statute itself. This may mean that the only mechanism for enforcing the statute is KRS 446.070, a statute that authorizes civil suits for violations of Kentucky statutes. However, certain elements must be satisfied for this mechanism to be available. Moreover, some case law suggests that an action filed pursuant to KRS 446.070 may be subject to immunity defenses available to school districts and officials under Kentucky law. Since no court has yet interpreted KRS 211.755, it is not currently clear whether damages suits for violations of that provision are available.

Regardless, schools and other public entities who rely on the time and talent of parent volunteers, would be wise to review the requirements of KRS 211.755 with their attorneys. As education about breastfeeding accommodations becomes more widespread, these issues are likely to only increase. Furthermore, ensuring quality communciation and respect for the rights of mothers is a great way to establish and build relationships with the public and volunteers who contribute so much to schools.

Beyond this, advocates are working hard to expand the protections for breastfeeding mothers in public spaces. Just recently, Kentucky passed Senate Bill 18 which amends its Civil Rights Act to include protections for expectant and breastfeeding mothers. We’ll cover this topic is our next post.

 

Sixth Circuit Case with Implications for Employers and Schools to Get SCOTUS Review

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SCOTUS will be hitting the books to determine the scope of protections in Title VII.

Last year, the Sixth Circuit issued a groundbreaking decision in employment law relating to Title VII of the Civil Rights Act. In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018)the Court held that the prohibition against discrimination on the basis of sex in 42 U.S.C. § 2000e-2(a)(1) protected an employee on the basis of gender identity. In particular, the Court held that Title VII’s reference to “sex” necessarily included protections for transgender or transitioning persons. Citing the Supreme Court’s landmark decision in Price Waterhouse v. Hopkins , 490 U.S. 228 (1989), the Sixth Circuit also found that discrimination against transitioning or transgender employees was also prohibited as an impermissible “sex stereotype.” As the Sixth Circuit noted, in Price, the Supreme Court acknowledged that unlawful discrimination occurred where a female employee alleged she experienced adverse employment actions for failing to “walk … femininely, talk … femininely, dress … femininely, wear make-up, have her hair styled, [or] wear jewelry[.]” According to the Sixth Circuit, there was no reason that this same rationale should not apply to stereotypes that relate to an employee’s gender identity.

On Monday, the Supreme Court granted certiorari on the Sixth Circuit’s decision, specificaly as to the question of whether Title VII protects employees on the basis of their status as transgender or under the “sex stereotypes” prohibition from Price Waterhouse. At the same time, the Court granted cert to consider contrary results from the 2nd and 11th Circuits which addressed whether Title VII’s sex discrimination prohibition extends to sexual orientation. Given that Title VII applies broadly to employers across the United States which have more than 15 employees, including state and local governments, the grant of cert in these cases clearly has the potential to impact school districts and its employees in and outside of the Sixth Circuit.

In addition, as Mark Walsh of the School Law Blog, aptly noted, these cases could have broader implications as well for school districts. As Walsh explained, the interpretation of one Title of the Civil Rights Act often serves as a precedent that can affect the interpretations of others. Thus, if SCOTUS chooses to affirm the extension of protections in Title VII to gender identity or sexual orientation as some lower courts have done, it could affect other federal statutes, including Title IX, which may affect the rights of students as well as school employees. As such, the Supreme Court’s decision to review Harris Funeral Homes is certainly significant for schools, their employees, and potentially their students in and outside of the Sixth Circuit.

 

Pending Criminal Charges Insufficient to Stay Ohio University Disciplinary Proceeding

man wearing black officer uniform
This is where we are used to hearing about the “right to remain silent.”

Anyone who has watched a TV cop show knows that they have a right to remain silent when criminal charges are pending against them. This right emanates from the language in the 5th Amendment of the United States Constitution which ensures that citizens will not be “compelled in any criminal case to be a witness against himself”. But, what happens when testimony is expected or necessary in a proceeding that isn’t a criminal case?

That was the issue in Roe v. Director, Case No. 19-CV-136,2019 U.S. Dist. LEXIS 55246 (S.D. Ohio 4/1/19). In that case, John Doe, a student at Miami University faced, simultaneously, a university disciplinary proceeding and a criminal proceeding after he was accused of sexually assaulting fellow student, Jane Roe, in November, 2018. The common practice for criminal defendants in such a predicament is to request a stay of the non-criminal process until the criminal proceeding resolves. Doe did this, but because the university’s disciplinary policies expressly permitted hearings to proceed when criminal charges were pending, his request was denied. When the hearing was scheduled, Doe filed a Motion for a Temporary Restraining Order in the Southern District of Ohio to stay the hearing until the criminal process was resolved in order to vindicate his due process rights.

The standard for a TRO is a high one. In order to obtain relief, a party must show that he will experience irreparable harm if an injunction is not granted and that the equities favor granting the injunction. In addition, the party requesting a TRO must show that they are “likely to succeed on the merits”, or that the prevailing law strongly supports their claims. After considering these factors, Judge Timothy Black of the Southern District of Ohio denied Doe’s Motion.

Judge Black conceded that for Doe the university disciplinary process carried with it life-damaging penalties and that the prospect of hindering a defense in criminal proceedings was dire. Yet, the Court ruled that Doe was unlikely to succeed on the merits of his claims because the applicable disciplinary process did not violate the Due Process Clause. To reach this conclusion, the Court applied the well-established tripartite balancing test from Mathews v. Eldridge, 424 U.S. 319 (1976) and considered: (1) the private interest at stake; (2) the procedures used; and (3) the government interest.

While the Court agreed that Doe’s interests were strong, including his long-term employment prospects and reputation, it found that the university’s interest in addressing and promptly resolving sexual assault complaints was compelling. Although the Court acknowledged that Doe’s right to avoid self-incrimination was constitutionally enshrined, his right to stay other proceedings to ensure the exercise of this right was not. To the contrary, the Court cited to at least one past decision which found that a student received due process in a university proceeding even though it had occurred while criminal charges were pending. See Pierre v. Univ. of Dayton143 F.Supp.3d 703 (S.D. Ohio 2015).

As to the other elements, though the Court acknowledged that Doe’s situation was problematic, it was skeptical that it constituted irreparable harm because the proceeding had not yet occurred and no finding had been made against him. Additionally, the Court found that the public interest did not support a finding in Doe’s favor because, if such a ruling were entered, it would prevent universities from conducting disciplinary hearings in any case where criminal charges were filed until they were resolved. As the Court noted, this could prevent universities from resolving disciplinary complaints for months or, in some cases, years. For these reasons, the Court denied Doe’s request for a TRO.

So what does this case mean? It means that the “right to remain silent” we hear about in cop shows has limits and that it does not necessarily apply the same way in non-criminal proceedings, including university disciplinary proceedings.