From Education Week's Blog
By Mark Walsh
October 2, 2017
The U.S. Supreme Court on Monday declined to take up cases on special education, violent speech aimed at schools, alleged teacher misconduct, and alleged retaliation against parents as it formally opened its new term.
The justices turned down hundreds of appeals that had piled up over the summer, just a few days they had granted review of nine of those appeals, including a major case about whether public-sector unions, including teachers' unions, may continue to charge fees to nonmembers for representing them in collective bargaining.
But the first Monday of October usually brings an orders list denying most of the rest, and October 2 was no different.
Among the more prominent education cases denied by the court was one dealing with the "stay-put" provision of the Individuals with Disabilities Education Act.
In N.E. v. Seattle School District (Case No. 16-1285), the question was whether an educational setting constitutes a child's "then-current educational placement" simply because it is the placement listed in an individualized education program (IEP) drafted by the school district, even when the parents objected to the portion of the IEP listing that placement, and the child never actually attended that placement.
The U.S. Court of Appeals for the 9th Circuit, in San Francisco, had ruled in favor of the Seattle School District in the case. Lawyers for N.E., a student with attention deficit hyperactivity disorder, argued that the 9th Circuit's interpretation of the stay-put provision of IDEA was incorrect and inconsistent with several other federal circuit courts.
"The circuits exist in a state of perpetual confusion" about how to apply the stay-put provision, the Supreme Court appeal on behalf of the student said.
The justices declined the appeal without comment.
There was a different disposition for another special education case. The Supreme Court granted a California family's request to toss out a 9th Circuit decision that had upheld a federal district court's and administrative law judge's findings that a school district met its obligations under the IDEA for a student identified as E.F., who has autism and communicative delays.
The parents of E.F. said in court papers that he had made only minimal progress on his IEP's goals over four years in the Newport Mesa Unified School District, and that the lower court rulings had affirmed such a standard of minimal progress that was later rejected by the Supreme Court.
In its March 22 decision in case involving a Colorado student, Endrew F. v. Douglas County School District, the high court had set aside a "merely more than de minimis" standard adopted by another federal appeals court and held that an IEP typically should be "reasonably calculated to enable the child to achieve passing marks and advance from grade to grade."
In their Supreme Court appeal in E.F. v. Newport Mesa Unified School District (No. 16-1533), the family asked the justices to vacate the 9th Circuit's decision in their case and remand for further consideration in light of Endrew F.
And that is exactly what the high court did.
Below are several other education-related cases the court declined to take up on Monday.
Internet School Threats
The justices declined to get back involved in the case of Anthony D. Elonis, a Pennsylvania man who was convicted of a federal crime of communicating threats across state lines for Facebook postings that included his musings about shooting up an elementary school.
The former amusement-park employee was experiencing difficulties with his wife and his job in 2010 when he began posting violent material on Facebook, including: "Enough elementary schools in a 10-mile radius to initiate the most heinous school shooting ever imagined. And hell hath no fury like a crazy man in a kindergarten class. The only question is ... which one?"
In 2015, the Supreme Court vacated his conviction because of a jury instruction that Elonis could be convicted if a "reasonable person" would have perceived his communications as threatening. The court ruled 8-1 that such a "reasonable person" standard was inconsistent with the conventional requirement for criminal conduct of "awareness of some wrongdoing."
On remand, the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, last year affirmed Elonis's conviction, holding that "the record contains overwhelming evidence demonstrating beyond a reasonable doubt that Elonis knew the threatening nature of his communications, and therefore would be have been convicted absent the error" in the jury instruction.
With regard to the count involving his elementary school reference, the appeals court said, "Given the understandable sensitivity regarding school shootings in this country, of which Elonis was no doubt aware, no rational juror could conclude that Elonis did not have the purpose to threaten, or did not know that a reasonable person would feel threatened, when he said he would 'initiate the most heinous school shooting ever imagined.'"
The justices declined without comment to take up the appeal of that decision in Elonis v. United States (No. 16-1231).
Alleged Teacher Abuse of Student
The court declined to hear the appeal of the parents of a Michigan student with brain injuries and a cognitive impairment who allege that the boy's elementary school teacher treated him harshly in class, including grabbing the boy by his head and jerking him back and yelling, "You need to listen."
Both a federal district court and the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, gave summary judgment to the teacher, the Livonia, Mich., school district, and other defendants on a claim that the boy's due process of law rights were violated.
The majority on a 2-1 panel of the 6th Circuit said the teacher's alleged conduct was not enough to "shock the conscience" under comparable cases. The dissenting judge said the majority failed to properly consider evidence of the teacher's alleged mistreatment of other special education students, the "abusive environment" the teacher had created, and the fact that the teacher was fired by the school district.
The Supreme Court called for, and received, a response to the parents' appeal in Gohl v. Livonia Public Schools (No. 16-1001). But the justices declined without comment to take up the case.
Alleged Retaliation Against Parent
The justices declined without comment to hear the appeal of a California father who says a school district retaliated against him when he complained that a district policy held cheerleaders to a higher academic standard than football players.
Richard D. Davis III alleged that the Folsom Cordova Unified School District retaliated against him for his complaints by limiting his daughter's practice time and position on the cheerleading squad and by failing to adequately investigate his complaints.
A federal district court dismissed his suit, and the 9th Circuit court affirmed. The appeals court said that while there was evidence that the cheerleading adviser had limited the participation of Davis's daughter, the evidence was insufficient to support the father's retaliation claim.
The Supreme Court appeal was Davis v. Folson Cordova Unified School District (No. 16-1389).