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.

FERPA FAQ Relating to Use of SROs Issued to Encourage School Safety

School safety is always a top priority for schoool officials. Due to recent acts of gun violence in American schools, however, it is also a top priority for elected officials and government agencies. Here in the Sixth Circuit, Kentucky, Michigan, Ohio, and Tennessee have passed or entertained legislative and funding tools aimed at making schools safer. At the federal level, the Federal Commission on School Safety released a report late last year with recommendations for improving school safety. While the Commission included numerous recommendations within its 180-page report, some of its suggestions included clarifying FERPA or even updating its language.

black and white business career close up
When it comes to FERPA compliance, there are indeed many frequently asked questions.

As of yet, the divided Congress has not taken action to update FERPA as the Commission has urged. On the other hand, the Privacy Technical Assistance Center within the United States Department of Education has issued a FAQ guidance document relating to FERPA. In particular, the document is intended to clarify the manner in which FERPA applies to school resource officers (“SROs”) and school law enforcement units.

The PTAC’s guidance document contains answers to 37 questions relating to FERPA implementation which may affect school safety decisions, including:

  • Can law enforcement unit officials who are off-duty police officers or SROs be considered school officials under FERPA and, therefore, have access to students’ education records?
  • Does FERPA permit schools and districts to disclose education records, without consent, to outside law-enforcement officials who serve on a school’s threat assessment team?
  • When is it permissible for schools or districts to disclose student education records under FERPA’s health or safety emergency exception?
  • Does FERPA permit school officials to release information that they personally observed or of which they have personal knowledge?

FERPA is a complex law and issues relating to student privacy arise frequently. Further, these issues are, as School Safety Commission found, compounded by constantly evolving technological issues in the school setting. Guidance as to the implementation of FERPA at the local level is therefore welcome. Whether these measures will be sufficient to address broader issues relating to school safety in general or gun violence in particular, however, remains to be seen.

Standard of Reasonableness Prevails in Sixth Circuit’s First IDEA Peanut Allergy Case

food healthy dry pattern
Peanut allergies are common in public schools today.

In litigation instituted under the IDEA, parents and school districts are often at odds about almost everything. One thing that they tend to agree on, however, is that the safety of the student is of critical importance. There tends to be a disconnect, however, about the meaning of the term “safety” when one compares the perspective of parents and school officials. This disconnect is front and center in IDEA cases involving allergies because, in some cases, the quality of a plan for a student can have life and death consequences. This can be compounded when a student’s disabilities may prevent or inhibit him or her from relaying signs and symptoms to teachers. Nevertheless, although the IDEA requires schools to consider a student’s health or functional needs in evaluating students and developing IEPs, see 34 CFR 300.304(b)(4); 34 CFR 300.324(a)(iv); it does not impose clear procedures for addressing allergies specifically.

The common practice for many districts is to address allergy needs in the form of a written health plan developed in conjunction with the student’s physician and school nursing staff. In conjunction with this, IEPs are often updated to include information about the allergy and its impact on the student’s education or placement. But, for parents who understandably want nothing short of a guarantee of their children’s safety, the question inevitably arises as to whether the IDEA requires schools to do more? In the recent decision, Barney v. Akron Bd. of Educ, 2019 U.S. App. LEXIS 5437 (6th Cir. 2019), the Sixth Circuit says “no.”

In Barney, an IDEA-eligible student had a peanut allergy for which the school had developed a written health plan. Among other things, it called for the limitation of peanut products in his classroom and permitted the provision of medication if a reaction occurred at school. His IEP also included information about the allergy and his health plan. Despite the precautions in the plan, food servers accidentally sent sealed containers of peanut butter to the student’s classroom on one occasion. A staff member in the room noticed the error early on and sent the student to another room to eat lunch as a precaution. Nonetheless, the parent came to school after learning of the incident, contended contra the observations of school staff that he was having an allergic reaction, and took him to the hospital. Notably, the record was silent as to whether the student was in fact diagnosed with a reaction at the hospital. Regardless, a few days later the parent withdrew the student from school and filed for an IDEA due process hearing..

At every level of the proceedings, the parent’s claims were rejected. No procedural or substantive violations of the IDEA were found and the student’s health plan was found to be adequate. On appeal, the Sixth Circuit agreed. Citing the long-standing rule that a student’s IEP need only be “reasonably calculated” to provide educational benefit to satisfy the IDEA, the Court found that the allergy had been sufficiently addressed in the student’s IEP and health plan. In other words, the Court was not concerned that the school’s plan was not perfect because the student may have had a reaction at school. Rather, the Court was satisfied that the district’s plan appeared to make reasonable attempts to keep the student safe at school notwithstanding his allergy.

Although peanut and other allergies are common in public schools today, Barney is the first time that the Sixth Circuit has set a standard for accounting for student allergies under the IDEA. As such, this decision is critical becuase it will provide a road map for District Courts, hearing officers, and state-level review panels in deciding IDEA claims relating to student allergies in Kentucky, Tennessee, Ohio, and Michigan.

Failed Abuse Claim against KY School District Demonstrates How High the “Deliberate Indifference” Standard Is

The Sixth Circuit recently affirmed the grant of summary judgment in favor of a Kentucky school district sued for allegedly tolerating the abuse of a special needs student. In K.C. v. Marshall County Bd. of Educ., Case No. 18-5186 (6th Cir. 2019) the parents of a special needs student filed suit under Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act after they learned that their child may have been subjected to verbal and physical abuse and neglect while at school.

Though the record contained substantial evidence to verify that the abuse occurred, including a surreptitiously obtained recording of a staff member, reports of at least one fellow student, and findings from at least one child-protection agency, the Court affirmed the grant of summary judgment in favor of the Board of Education. The reason for this, as the Court noted, was that the student’s claims under the ADA and Section 504 were subject to the onerous “deliberate indifference” standard. This standard, which governs a number of federal civil rights and constitutional claims, requires actual notice of alleged wrongdoing and a failure to act. Although the Court was plainly troubled by the facts in the record before it, as indicated by the concurrence of one Justice who wrote separately merely to express his concern, the Court found that there simply was no evidence that the Board had forewarning of the teacher’s behavior. As such, it affirmed the grant of summary judgment in favor of the District.

The Court was able to sidestep a potentially more challenging issue–vicarious liablity–due to the parents’ failure to raise this issue at the trial court level. On appeal, the parents attempted to argue that the Court should follow the lead of some courts outside the Sixth Circuit to apply a “vicarious liability” standard to ADA Title II claims. Under this theory, an entity could be held responsible for it’s employee’s violation of law even if it does not have actual knowledge of it. In K.C., however, the Court refused to address this issue since the parents had not alleged it in their complaint or raised it when opposing the District’s motion for summary judgment.

In short, K.C. suggests that there may be some developments as to the legal standard underlying disability harassment and abuse claims in the future. For the time being, however, K.C. demonstrates that the currently prevailing standard governing such claims is a difficult one to satisfy.


The Case of Marshall County: Exploring District Exposure in School Shooting Situations

Almost one year after the 2018 Marshall County High School shooting, parents of the victims have filed suit. The suit names several school administrators, board members, and the district’s superintendent both individually and in their respective official capacities within the Marshall County School District.  The shooter and his family are also named defendants to the lawsuit.

six woman standing and siting inside the room
Photo by Christina Morillo on

With respect to the school district, the suit alleges that the district, its administrators, teachers, and various counselors (collectively referred to as the “School Defendants”) are liable under theories of negligence and strict liability. Plaintiffs first assert that the School Defendants “negligently supervised and negligently trained employees of Marshall County High School in executing an appropriate Emergency Action Plan, in identifying warning signs, and in implementing policies, procedures and protocols.” (Complaint, ¶ 29) Essentially, Plaintiffs argue that the School Defendants owed them a duty to maintain a safe education environment, and the school breached that duty by failing to implement an adequate action plan for an active shooter situation. Thus, according to Plaintiffs, the School Defendants are at least partially responsible for the victims’ respective injuries.

Furthermore, the suit claims that this alleged failure to implement an adequate action plan was a direct violation K.R.S. § 158.162. (Complaint ¶ 34-35) Generally speaking, this statute mandates that all public schools adopt an an “emergency management response plan.” While this statute primarily refers to severe weather emergency plans, there are provisions which state that public schools must adopt a response plan for “lockdown” scenarios and adhere to practices to control the access to each school building.

In the context of school shootings, courts have generally recognized the discretionary nature of the actions of teachers and administrators in handling troubled students and emergency responses. Historically, claims against school districts and officials relating to school shooting haven been unsuccessful because the requisite standard of proof is high. For instance, tort claims asserted against school officials in Kentucky would need to demonstrate that the defendants actively engaged in bad faith in the implementation– or lack thereof– of a legal duty, such as the implementation of emergency management response plan. See James v. Wilson, 95 S.W.3d 875, 909 (Ky. Ct. App. 2002). Bad faith is not easily demonstrated because it is often difficult to demonstrate that school officials, in fact, had foreknowledge of potential violence from students and failed to act.

With that said, the conversation on school safety is an evolving one in Kentucky and nationwide. For example, just today the Kentucky legislature considered and passed through committee Senate Bill 1 as an attempt to improve school safety in the Commonwealth. As a result, it remains to be seen whether and how the conversation around school safety may affect lawsuits like the one against Marshall County in the future.