California Business Litigation Blog

The San Francisco school system is in for major changes in the way that students are placed in elementary and middle schools. School officials are now planning to send students to those schools closer to their homes, rather than basing the choice of school on socioeconomic class or home language, something it has used for years.

The Board of Education of the San Francisco Unified School District met to discuss possible options. Staff presented a number of options including those that would use academic performances and the student's home location to determine where the student went to school. Board recommendations are still being submitted and a final vote is scheduled for March 3 on all the options available.

Options include:

Parent Selection
One of the options presented is to allow parents to select the school that the child attends, up until the school is full. At that time, all names of remaining students would be placed in a lottery system to determine which school the child will attend. However, the difference here is that the lottery would also take into consideration academic performance of the student to get an aggregate of low to high performing students in each school. In addition, such a lottery system would also factor in the location of the student's home.

Closest to Home
Another option is to simply send the children to the school that is closest to their home. Parents could still make a choice in which school to send their child, but they would be allowed to choose other schools outside of their closest school only if there was availability at that school. This makes the school assignment far more predictable.

Racial Diversity
The goal of the school board, however, is to create more racial diversity within their schools. Neither of the thus far proposed options offers any type of benefit to racial diversity. The school officials are hoping to find another solution that will give them more ability to reduce the number of racially isolated schools in the community.

Complexity
The Parent Advisory Council and Parents for Public Schools both came together to talk about the school assignment system. These groups will not support any system that takes the parent’s right to choose a school. The group believes that if the school district ensured that all schools offered the same benefits that people would not care as much about their child's assignments.

A history of the San Francisco Unified School District's school assignment system may be found by clicking on the following link:

Continue reading "San Francisco District Shake Up of School Assignments Starts" »

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Posted In: Education , Education Law , School District Law , School Lawsuit , Special Education

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The United States Justice Department has intervened in the civil case between a former student and his school. The school, Gregory B Jarvis Junior Senior High School, part of the Mohawk Central School District, is accused of failing to stop students and teachers from bullying a 14 year old, openly gay student named Jacob. The claims are that the bullying centered around the child's sexual orientation. See previous post HERE.

The student was often the subject of verbal and physical harassment, the lawsuit states, because he was openly gay. In 2009, the student began to dye his hair and wear eye makeup, which intensified the bullying to the point of being pushed down the stairs. The parents of the student claim that the school did nothing to stop the bullying.

However, the fact that the Justice Department is involved in the case signals that there may be a broader interpretation of the federal law that prohibits gender discrimination, which in this case is being applied to the gay male. The New York Civil Liberties Union attorney states that this involvement shows a major shift under the Obama Administration.

The basis for joining the lawsuit, the government says, is Title IX of the Civil Rights Act of 1964. The case is being heard in US District Court in the Northern District of New York. The teen's attorney states that the case is a fight for basic human rights afforded under the US Constitution. It commends the Justice Department for its involvement in the case.

The lawsuit seeks undisclosed monetary damages. With the joining of the Justice Department, this helps provide district wide relief for all district students in the future. The assistant attorney general in Washington authorized the involvement of the Justice Department by stating that it was a matter of general public importance.

The student is no longer in the Mohawk district but attends school in a neighboring district. The school district claims it is close to a settlement with the student, but further comments were not available. The Justice Department has interviewed numerous Mohawk school officials including Superintendent Joyce Caputo.

Continue reading "U.S. Justice Department Joins Gay Teen's Lawsuit" »

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The New York State's highest court declined to hear the motion of television anchor Dan Rather, who has tried to unsuccessfully sue his former employer, CBS for $70 million. He alleges that the company was in breach of his contract and made accusations of fraud against the company. The state appellate court dismissed the case in September, but the Court of Appeals denied the motion without comment.

The ruling from the appellate court states that the pay or play clause in his contract allowed the network to take the actions they did. Further, the ruling stated that Rather failed to show support for his claims that CBS has hurt his future earning potential in the case.

Rather was with the company for 44 years. This motion was the final move the newsman could make in the case, which proved to be an expensive and ugly battle. Rather sued CBS first in 2007, when he stated that his treatment from the company in the aftermath of a controversial report issued about George W Bush's service in the Texas Air National Guard was released.

The lawsuit stems from a 60 Minutes II piece in which Rather reported that Bush received preferential treatment during his Vietnam era service in the National Guard. Rather states that there were documents obtained by CBS written by Bush's commanding officer at the time. However, the validity of the documents came under scrutiny and the network conceded that the documents could not be authenticated.

After he filed suit, some of his colleagues publically denounced him saying that he trying to deflect some of the blame for allowing the story, which had not been properly vetted, onto the news program. However, the lawsuit, claims Rather, is meant to take on political interests and business interests that he believes are affecting the news organizations.

Rather was quoted as saying the following in regards to the lawsuit and his claims, "I believed then and I believe now that its' important the public understand how much influence in collusion big government and big business can have in affecting how the news is handled." The remarks were made on Tuesday after his motion was declined.

CBS declined to comment on the ruling, stating that they will let Rather have the final word.
After the airing of the controversial piece, Rather says that he was pushed out of the anchor chair and then placed in the news division until he was prematurely released. He believes that the actions of the network damaged his reputation and made it difficult for the anchor to find work after that point.

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In a ruling on Dec 29, former Deloitte partner, Thomas Flanagan, from Chicago, was found liable for violating the accounting firm's conflict of interest policies. These policies extend for stock and options trading of the firm's clients. Clients of the company include Motorola Corp, Allstate Corp and Walgreen Co. Flanagan who was a 30 year employee of the company, was also found to have concealed these trades from Deloitte.

A further hearing has been set to determine the extent of the penalty held against Flanagan, but reports indicate that the company is seeking monetary damages which may include Flanagan's retirement benefits. Flanagan has not made a statement regarding the case. He has said that some of his investments were allowed by the SEC, such as those in which he did not have specific interactions with client's or those clients that were not from the Chicago office where he was employed.

Flanagan, a senior partner and Vice Chairman for the company embarrassed the company and left the company vulnerable to a variety of liability exposures from clients. In addition, the company is now shaken because of the additional regulatory scrutiny about the independence of the auditor. Within the accounting industry, there are strict rules about trading simply because employees have so much access to the private information of their clients that they could affect the pricing of the client's securities. Numerous times during the trial, Flanagan invoked his Fifth Amendment rights.

Many of the company's clients have had to do their own investigation to determine the involvement of Flanagan with their individual accounts. Walgreens, USG Corp and Allstate have conducted investigation that have found that Flanagan did not have involvement with their specific audits.

The company, Deloitte, says that Flanagan made investments into the company's audit clients and others more than 300 times between the period of 2001 to 2008. In some of those transactions, evidence showed that Deloitte was trading on non public information which is illegal. As of yet, the US Securities and Exchange Commission has not brought charges in the case.

Flanagan's involvement in such transactions was detailed numerous times in the case. One instance poses Flanagan attending a meeting of Allstate's audit committee in which a draft of the company's second quarter earnings statement was circulated. The company planned to announce significant increases in full year earnings at that time. This occurred on July 17, 2006. The following day, Flanagan purchased call options in Allstate stock. He later sold them on July 20th, the day after Allstate's earnings went public and the price of the stock purchased rose considerably. The stock saw an 85 percent gain in those days.

Flanagan is also charged with concealing his holdings from the company. The company requires individuals to report investments they or their immediate families own. In numerous instances, Flanagan would record unauthorized holdings into the company's computer tracking but would go back later the same day to correct such entries indicating that he had disposed of holdings when in fact he had not.

According to reports, Deloitte did not know of Flanagan’s wrongdoing until August of 2008. At that time, the SEC contacted Deloitte in regards to an audit for Walgreens in 2007. Flanagan purchased stock in Option Care Inc a week before Walgreens announced that it would buy the company in July of 2007. Flanagan did serve as an advisory partner on that audit. Flanagan resigned from his position with Deloitte as soon as the company contacted him regarding the SEC inquiry.

Continue reading "Deloitte Wins Lawsuit...Former Partner Loses" »

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The California Science Center in Los Angeles canceled its screening of the documentary, "Darwin's Dilemma: The Mystery of the Cambrian Fossil Record." The documentary promotes the theory of intelligent design rather than the theory of evolution for the creation of human beings. The documentary specifically criticizes Charles Darwin's theory of evolution. Moreover, because of this cancelation, the museum is being sued.

The American Freedom Alliance says it has no position on intelligent design but does say that the filing of the lawsuit against the science center is necessary since the center is stifling debate on the topic by canceling it. The organization brought the lawsuit against the California Science Center in October, in Los Angeles Superior Court.

The science center was set to show the program in October of 2009. However, it pulls it after being pressured to do so by the Smithsonian and other scientific academies.

This is not the first time that this topic has come up in a court of law. In 2005, for example, the case of Kitzmiller vs. Dover Area School District resulted in a federal judge issuing a ruling that public school classes cannot present intelligent design as an argument for the creation of humans because it is a form of Creationism. It also occurred in 2005, when The Smithsonian approved auditorium space in its National Museum of Natural History to screen another intelligent design type of documentary. The scientific community opposed this, but The Smithsonian was unable to back out of the previously signed contract. It did refund the rental fee for the space and publically stated it was not endorsing the screening of the documentary.

The pretrial hearing in this case is scheduled for January 26th, 2010. The American Freedom Alliance claims that the cancelation of the screening was done under a false pretext and therefore that the science center committed contract fraud. It is seeking punitive damages.

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In a move that has already stirred up tremendous controversy, Nevada Governor Jim Gibbons has released his plans for reforming Nevada's Public Education System. Some have even called it an attempt to eliminate Teachers' Unions.

Here is the press release:

For Immediate Release: January 6, 2010

GIBBONS EDUCATION REFORM PROPOSAL

Governor Gibbons is firmly committed to improving K-12 education in Nevada. Improvement will require new ideas and fresh resolve to replace blind allegiance to ineffectual and wasteful notions that have demonstrated no substantive gains in academic performance for the last 20 years.

Class size reduction was added to the Nevada Revised Statutes in 1989. According to the Nevada Department of Education, 613 schools served K-12 students during Fiscal Year 2009. Despite 20 years funding class size reduction, the Department recently announced 142 public schools in Nevada qualify as low-performing for the purposes of receiving federal grants for the “worst” schools in the nation. That means 23 percent of our public schools are not adequately addressing the educational needs of their students.

It’s time to stop whining that education in Nevada doesn’t work because of lack of funding. We need to quit throwing money at programs which have not accomplished their stated purposes despite two decades of funding. There are many studies which debate the issue of class size in primary grades, as many pro as con. Utah has one of the lowest per student expenditures in the nation and the highest student per teacher ratio. Utah students consistently achieve above average levels. Washington, D.C. has the lowest student per teacher ratio and the highest per student expenditures, and yet they consistently rank in the bottom for student achievement. If class size reduction is the answer for improving K-12 in Nevada, why haven’t student test scores improved dramatically in the last 20 years?

In order to improve Nevada schools for our students, we need to implement true change - real change. We need to get parents and communities involved in their local schools, and in charge of their children’s education. We need to empower local school boards to make decisions which are right for the children in their community. Local school boards are ultimately responsible to parents and voters in their community. Parents have the most vested interest in the outcome of their children’s education.

The cookie cutter approach has not worked in K-12 education. Not all schools need class size reduction programs. Not all schools need full-day kindergarten. School districts must be empowered to choose the right programs for the students in each of their local schools. Parents must be afforded the ability to choose and guide the education which works for their children.

The current fiscal crisis facing Nevada mandates that Governor Gibbons buck the status quo. If 23 percent of Nevada schools are categorized as underachieving, we need to rethink how we deliver public education in Nevada. We need to make better use of existing resources, and give local school districts the flexibility to use funding to deliver the right programs to the right kids to achieve the best results.

Governor Gibbons will call a special session of the Nevada Legislature to address the fiscal crisis facing the state of Nevada. In this session, Governor Gibbons will introduce a K-12 education reform package which will not only save Nevada taxpayer dollars, but will better utilize existing taxpayer support for schools by empowering local school districts to govern and direct how education is delivered.

Governor Gibbons’ education reform package includes:

Continue reading "Nevada Governor Releases Sweeping K-12 Reform Plans" »

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The Los Angeles Unified School District (LAUSD) is being sued by the union that represents teachers within that school system. The lawsuit, filed on December 28, 2009 claims that the school district failed to comply with state requirements before converting a school to a charter campus.

According to teachers, the California Education Code requires the approval of a majority of permanent teachers before schools can be turned into charter schools. In a news conference held at Garfield High School, the teachers claimed that schools like Garfield and Esteban Torres High School fall into this category.

The lawsuit specifically wants the LAUSD to comply with the Education Code, and hopes a court order will force this to happen.

The plaintiffs in the case are UTLA, and LAUSD teachers from Garfield High School, 28th Street Elementary School, Foshay Learning Center and Pio Pico Span School.

While Esteban Torres High School (charter) should relieve some of the overcrowding from the nearby (non charter) Garfield High School, LAUSD’s position is that a vote of the teachers was not required since Esteban Torres High School is a brand new school, and not a conversion of an existing school.

The two high schools, Garfield and Torres are part of the 36 new and existing schools in the Public School Choice Resolution passed by the Board of Education for the 2010 and 2011 school year. This plan allows for operations of the school to be put out to bid by third parties. The goal of the program is to help provide options for the operation of schools considered low performing campuses. Monica Garcia, who is the president of the LAUSD Board of Education, says that no schools will automatically be converted to charters as a result of the program.

This lawsuit is expected to be just the first in a series that will be filed by the UTLA in opposition to the LAUSD's plans to reform. It is also important to note that charter schools are not required to hire union teachers.

Continue reading "Teachers Union Sues Los Angeles Unified School District" »

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Here in Los Angeles, a woman who is legally blind is suing the National Conference of Bar Examiners because she believes they are unfairly restricting her from using necessary equipment to take the licensing test. The woman, Stephanie Enyart says that the agency needs to catch up with better, currently available options for its standardized testing.

When she entered law school, the Law School Admissions Test was required. UCLA, the school she was testing into, hired a human reader to read the test questions for her. The problems happened on test day. She says that the man hired was so sick that he continued to leave to get tea and blew his nose. She had a hard time understanding him through his nasally congestion, too. However, she passed the test and entered law school. She believes her score suffered because she was denied the use of a computer software program that would magnify the text of the test and convert it to speech heard through an ear bud.

The National Conference of Bar Examiners has denied her request to use a computer program to take a portion of the California bar exam that it controls. Rather, it says she must use a human reader instead.

Due to this, she has sued the national conference. She claims that the conference violated the Americans with Disabilities Act and the California Unruh Civil Rights Act that prohibit discrimination.

Enyart says, as reported by the LA Times, "To use a human reader or the visual accommodations they have offered just simply doesn't meet my disability needs. It would be like trying to run a race in someone else's shoes."

Mr. Enyart is not the only person who wants the national conference to catch up. A man named Michael Witwer, who will graduate from Catholic University of American's law school this year took another required test, the Multistate Professionals Responsibility Exam recently and passed though with a score he believes was reduced because he was unable to use computer programs during the test. Rather, a human reader was imposed by the administrator of the test.

He says that the reader commented on big words in the questions and struggled with pronunciation including struggling with the word constitutional.

However, there is some improvement seen within the industry. The National Conference of Bar Examiners has allowed three blind test takers to take the test in July using a pilot program that allows software to read the text aloud to the user. This was reported through Larry Paradis, an attorney who is part of the firm representing Enyart in her lawsuit. The pilot's internal report says that the pilot program has been successful. However, the program is unable to be used at this point, and will not be available in February when Enyart will take her test.

There are about 500 blind or vision impaired lawyers in practice in the United States. Most use equipment similar to what Enyart wants to use within their day-to-day practices.

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University of California Hastings College of the Law in San Francisco refuses to recognize, and thereby help fund, a Christian group of students because they exclude non-Christians, lesbians and gays. The U. S. Supreme Court will determine if that is legal.

The U.S. Supreme Court, which chooses not to hear most submitted cases, has decided to hear this one as it will likely affect public universities around the country. The battle is not a new one. Conservative Christian groups believe these limitations violate their constitutional rights. They are being forced, they say, to tolerate views that violate their religious beliefs.

Christian Legal Society filed a lawsuit against the school in October of 2004. This group limits those who may join the society based on one clear statement. The student is unable to join if he or she "advocates or unrepentantly engages in sexual conduct outside of marriage between a man and a woman." The group's members must sign documentation stating they are committed evangelical Protestant or Catholics.

The school enforced its policy on barring discrimination based on race, national origin, sexual orientation or religion and refused the society. The group then took the matter to federal courts. U.S. District Judge Jeffrey White then ruled that the school was justified in its refusal and said the school could require that organizations "accept all comers as members." This was later upheld in the Ninth Circuit Court of Appeals.

However, the group appealed to the Supreme Court. Their opinion is that the school is forcing the society to abandon their identity or shut down the society altogether.

The answers to these concerns will not come soon. The case is likely to be heard in March of 2010 and a ruling may come down by June.

The argument that the society is making is that if all members had to be accepted, this would restrict the progress of the group since valuable time would be repeatedly spent discussing the fundamentals of members’ various religious beliefs. The school, however, believes the issue is whether or not universities and other public schools should subsidize discriminatory groups.

Other cases like this have been heard. In 2007, a lawsuit by Christian Legal Society against Southern Illinois University was settled in which the school said it would recognize the group. More so, the Boy Scouts of American was upheld in its decision to exclude gays and atheists from its membership roles, as a private organization's right to free association. However, the California Supreme Court upheld another incident with the Boy Scouts in 2006 in which Berkeley denied a rent subsidy to the Sea Scouts, a Boy Scout Subsidiary.

Continue reading "Can UC Hastings College of the Law Refuse Christian Student Group Based On Group's Beliefs?" »

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A teacher from Dayton found not guilty of charges of having sex with a 16-year-old student is now suing the prosecutor who brought the charges. The teacher, Nicole Howell, and her attorney, Eric Deters, filed the claim in U.S. District Court against Rob Sanders, Kenton Commonwealth's attorney. Sanders released a statement saying that the lawsuit was baseless and without merit.

Sanders commented that he was simply another high profile person to be sued by Deters, a reference to the Deters suits against the New England Patriots and Chad Ochocinco. In addition, he commented on Deters radio career saying Deters was "a publicity seeking radio personality with a law license."

Under law, a prosecutor cannot be sued as they have immunity. However, Deters claims that the actions prior to the charges being filed are not included in that immunity. Although Sanders says that a judge determined there was probable cause to arrest Howell, Deters argues that "when a prosecutor violated the public trust, those destroyed in the wake of the abuse of power deserve their remedy."

In the state of Kentucky, only a judge can issue an arrest warrant. Kenton Circuit Judge Gregory Bartlett determined there was probable cause and sent the case on to the grand jury, where 12 members found that there was sufficient evidence to send the case on further, to the jury.

It took juries only 70 minutes to find Howell not guilty of first degree sexual abuse. Howell says she is suing the attorney because she doesn't want someone else to face the same level of wrongful prosecution. She claims her reputation and her teaching career are over due to the lawsuit.

The lawsuit claims that Howell's previous attorney, Patrick Moeves, was told by Sanders that he did not care about the privately administered polygraph test that Howell passed. He wanted her arrested. Assistant Commonwealth's Attorney Stephanie Kastner made statements to Moeves that she did not want any part of the case, however had to act as Sanders requested. Moreover, it claims that Sanders knew numerous facts that would dispute the minor’s claims. These facts include the polygraph test passage, the minor being unable to identify a tattoo on Howell's back, rumors about the incident at school, and that the minor denied the rumors first before going forward.

Sanders, however, says that the minor did describe the layout of Howells apartment and could describe details of that apartment.

Interestingly, Howell's case was the first prosecuted under a more-stringent state law that makes it a felony for a person in authority to have even consensual sexual relations with someone under 18. In all other instances in Kentucky, the age of consent is considered to be 16.

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A recent Associated Press article reveals that every lawsuit filed or threatened under a specific California law can trace back to two lawyers who worked together in the writing of that statute. The statute is in regards to electing more minorities to office. So far, there have been about $4.3 million in settlements made under this law.

Under this law, lawyers are able to sue and win judgments easier in cases from claims that minorities were shut out of local elections. In addition, the lawsuit shields attorneys from any type of liability if the claims are tossed out of court.

Seattle law professor Joaquin Avila drafted the law. Robert Rubin, a legal director for the Lawyers Committee for Civil Rights offered advice for the drafting. Both, along with other attorneys working alongside these two, have been able to bill local governments more than $4.3 million in three cases that have settled. There are two additional lawsuits pending. More so, dozens of additional cities and school boards received warning that they too could be sued under the California Voting Rights Act of 2002. Each of these cases has been initiated by Rubin's committee or by Avila.

Although it may seem unjust, there is nothing illegal occurring when an attorney profits from a law they helped to author and state lawmakers approved. What is unique in this situation is that after seven years, related legal efforts continue to be extremely narrow in focus. Avila testified in 2002 that he expected other attorneys would take on cases due to these favorable incentives placed into the law.

According to Avila and Rubin, their roles should not overshadow the importance of these cases, as they work to end injustice at the polls. The number of minority officeholders was on the rise prior to the law being in place, and these two claim the lawyers are using the statute to shake down local governments.

Under the law, state courts may create smaller election districts that favor minority candidates. This was necessary, they claim, because the more commonly used "at large" elections allowed candidates to run across the entire district. Avila says this method leads to discrimination since the majority group will win out.

According to several communities in California, there are no complaints about voter discrimination until these attorneys stepped forward. Critics say the law is flawed. They believe that even when there is no discrimination, cash strapped communities are nearly forced to settle the lawsuit.

Many believe that the law and the settlements do nothing to improve the discrimination. Avila, who charges $725 an hour for services, would not disclose his earnings from the lawsuit. Rubin earns $700 an hour. In some school districts, the cost of such settlements is resulting in the inability of schools to provide textbooks to students.

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With the ever-changing rules on being equal, questions are arising questioning whether it is appropriate for boys to wear girls clothing. Most schools have dress codes, such as girls having a proper length skirt. However, what if a boy was wearing the skirt, if it was the proper length, could he?

Cross-dressing teens are testing the boundaries around the country. For example, in Houston, a senior was sent home because his hair violated the length rules, which stated that the hair could be no longer than the bottom of a regular shirt collar. In Cobb County, Georgia, a school sent a boy home because he wore makeup, wigs and skinny jeans. Another case occurred in August in Mississippi, in which a senior’s photo was banned from the yearbook because she was wearing a tuxedo.

This is not the story everywhere, though. For example, in a Tucson high school, a freshmen girl who identifies as a male was nominated as the homecoming prince. A gay male student in Los Angeles was crowned prom queen.

Schools and the public are changing viewpoints on these types of scenarios. In many cases, the adults become the police of the dress code, and follow cultural trends. In some cases, younger generations are simply more willing to accept such changes.

Schools regularly ban things that may be gang or sex related, or promotes drug use. However, when schools try to put in place codes that limit expression of sexual orientation of gender variance, the schools are forced to consider antidiscrimination policies.

Schools will eventually need to take these matters head on with more than 4000 gay and straight alliance clubs in high schools around the country. Even elementary schools are seeing these topics come up. In some high schools, educators are stating that schools should not be the public stage for working out private identity issues. Rather, high schools are supposed to be places for academic and social training. Administrators often rely on the dress code to help keep structure in the day. Cross dressing students cause disruptions, which is counterproductive to the instructional day.

In other schools, such as those in Pima County, Arizona where anti discrimination policies have been put in place, it is not uncommon to see boys wearing makeup and girl clothing, nor is it uncommon to see girls wearing big t-shirts and basketball shorts.

At the same time, educators have to take into consideration the student’s overall safety. If a child comes to school wearing clothes of another gender, and that child is harassed, it is up to the educators to help protect the student. That is not always easy. Even using the bathroom as a transgender student can be incredibly worrisome. Defining this fine line is something that schools across the country will need to do.

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