College-student disciplinary contract claims

The Pennsylvania Superior Court recently revisited – and rejected – breach of contract claims brought by a student dismissed from a private college. Reardon v. Allegheny College, --- A.2d --- 2007 WL 1576007 (Pa. Super.)  Thus, the Pennsylvania courts continue to adhere to a rather strict contract view of such claims, rejecting broader “due process” type claims.

The disciplinary procedures in the student handbook were the relevant contractual terms. The student did not argue that the terms were not bargained for, that she was unaware of the terms, or that the terms were ambiguous. The terms set forth “minimum procedural safeguards notice, the admission of relevant testimony, the right to call witnesses and present evidence, and the right to be represented by a member of the college community.” Reardon at pages 8-9. The student handbook did “not contain complicated procedural or evidentiary rules.” Reardon at page 8.

The court reiterated that, if a student cannot show a breach of any contractual terms, judges will not

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BONG HiTS 4 JESUS

The BONG HiTS 4 JESUS decision, issued June 25, 2007, holds that a public school principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. Morse v. Frederick, at page 8. Schools “may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.” Morse, at page 2. The decision is both clear and limited in holding nonsensical speech about illegal drugs can be prohibited in public schools.

The Supreme Court characterized the speech at issue, “Bong hits 4 Jesus” written on a 14 foot banner, as “cryptic,” perhaps offensive to some, funny to others, and meaningless to many. According to the student, it was just “nonsense meant to attract television cameras.” Morse at 6. And it was not political. Morse at 8. It nonetheless had an unmistakable message of some sort about drug use. “Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs.” Morse at 7. Accordingly, the banner, unfurled during a school activity, and its speech were not protected by the First Amendment. 

Analysis follows.

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And the impact of the Winkelman decision is. . . .

The U.S. Supreme Court’s May 21, 2007 decision in Winkelman v. Parma City School District says parents are permitted to represent their own special education interests in federal court.  Parents, schools, and the courts will, of course, feel the impact of this decision; only the degree of impact, particularly the amount of litigation, remains uncertain.

The Court’s actual pronouncement is not very remarkable. That parents have certain special education rights has never really been in doubt. All the decision adds is that parents have the right to enforce IDEA’s “other mandates” such as the child’s right to FAPE. “Parents may seek,” the Court wrote at page 15, “to enforce this mandate through the federal courts, we conclude, because among the rights they enjoy is the right to a free appropriate public education for their child.” (Emphasis added.)  

In other words, parents have the right to “enforce” a right, that is, the child’s right to FAPE. 

In my view, this is a case where the dissent got it right:

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Service animals in education

Student applications to permit various service animals in the educational setting are an increasing phenomenon. This was noted in The Chronicle of Higher Education, which looked at student requests to accommodate “comfort service animals” that are said to assist persons with various mental or emotional challenges.  

The federal court for the Eastern District of New York in Cave v. East Meadow Union Free School District, 480 F. Supp. 2d 610 (E.D. N.Y. 2007) (a public domain copy does not appear available), considered a hearing impaired public school student’s request under the Americans With Disabilities Act, 42 U.S.C. §§ 12101-12213, and the Rehabilitation Act, 29 U.S.C. § 794, to to permit his service dog in school. 

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TItle IX, gender discrimination, and money damages

The question of money damages under various anti-discrimination / inclusion education statutes seems to be a hot subject recently. The recent en banc Third Circuit Court decision in A.W. v. The Jersey City Public Schools, 341 F.3d 234 (3d Cir. 2007), discussed in another entry, ruled that there is no cause of action under Section 1983 for money damages based on a violation of IDEA and or Section 504.  

A recent federal district court case from Puerto Rico, Frechel Rodriguez v. Puerto Rico Dept. of Educ., 478 F. Supp. 2d 191 (D. Puerto Rico 2007) (unfortunately, I have not found a public domain copy), reached a similar outcome in a Title IX-based claim of gender discrimination. Specifically, the issue was whether a plaintiff has a right of action under § 1983 to redress violations of Title IX.  According to the case, the Sixth and Eighth Circuits have held such a right exists, but the Second, Third, and Seventh Circuits have ruled such a § 1983 claim is barred under the Sea Clammers doctrine announced in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981).  The Frechel Rodriguez decision dismissed the Title IX-based § 1983 claims.

So what does this trial court case from Puerto Rico mean for us? 

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Money damages, disabilities, and education

One shoe has dropped as a result of the recent en banc Third Circuit Court decision in A.W. v. The Jersey City Public Schools, 341 F.3d 234 (3d Cir. 2007), which ruled that there is no cause of action under Section 1983 for money damages based on a violation of IDEA and or Section 504.   The full court, aligning itself with other circuit courts and Supreme Court precedent, effectively overruled its 1995 decision in W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995) (unfortunately, the court's posted opinion is incomplete).

Basically, the court in A.W. reasoned that both IDEA and § 504 provide comprehensive remedies.  Because neither statute gives a textual indication that Congress sought to provide those comprehensive remedies in addition to a § 1983 remedy, the Sea Clammers doctrine bars any § 1983 cause of action. 

The problem for educational institutions (but to the relief of plaintiffs) is that the A.W. case addresses only one part of the Matula decision and money damages may still be available directly under § 504

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