California Business Litigation Blog

A lawsuit recently filed against the Los Angeles Unified School District (LAUSD) accuses the district of breaking California state law by failing to take student achievement into account during teacher evaluations. Filed by educational reform advocates in Los Angeles Superior Court on behalf of the parents of six LAUSD students, the suit also originally named the teachers’ union and LAUSD superintendent John Deasy as defendants.

Although California’s Stull Act explicitly states that schools must consider student achievement as part of a teacher’s performance, the suit claims that the LAUSD ignored the law in favor of the terms of the district’s union contract. Instead, the district allegedly conducted only cursory evaluations that consisted of a brief, previously announced visit by a principal to observe a pre-determined lesson. The parents charge that these evaluations are ineffective and result in the failure of only one percent of the teachers who undergo them.

The lawsuit came at a critical juncture for the district, which is in the midst of negotiations for a new contract with the teachers’ union. Although a tentative agreement between the schools and the union was reached shortly after the trial date was set for June of 2012, the agreement made no mention of the evaluation process.

There is little doubt that changes are needed to California’s education system. One in three California students fail to complete high school and many colleges are compelled to offer remedial education to entering freshmen. Enforcing compliance with existing laws would seem to be a reasonable place to start.

Bill Lucia of EdVoice, which filed the suit, has said that the vast majority of California’s schools utilize evaluation procedures that violate the state’s education code. This may be at least partially due to the fact that the unions have a track record of vigorously fighting all attempts to judge the performance of teachers based on the progress of their students. If the LAUSD loses the current suit, it will have little choice but to bring its procedures for evaluating teachers into line with the law. However, California law does not specify how much emphasis a district should put on student performance when evaluating the performance of teachers, leaving observers to speculate as to what effect a victory for the plaintiffs will have.

The prayer banner (see photo) that has graced Cranston West High School for nearly five decades still hangs on a wall of the school. Although the banner is now covered, the Cranston School Committee put off making a decision about what to do with it at a meeting following a court order to remove it. A rally that had been planned to show support for the banner never got off the ground, but local residents crowded a school committee meeting to express their points of view on the matter.

Police officers attended the meeting as a precaution as angry residents who disagree with the court’s ruling voiced their disappointment. Many residents also expressed their anger towards Jessica Ahlquist, the student who sued the school to have the banner taken down. Ahlquist herself spoke at the meeting in between Tweeted communications with fellow students who were also upset by the decision.

Ahlquist, who is an atheist, has been the target of online threats. Cranston West’s superintendent, Peter Nero, said in an interview that a police officer accompanied Ahlquist throughout the day as students returned to school on Tuesday, Jan. 16, 2012, which was the first regular school day after the ruling. However, he said, Ahlquist has not been the target of any threats or violence inside the school.

In a video posted online, Ahlquist said she never expected what she saw as a simple request to have the banner removed to turn into such a firestorm.

"I'd just say, 'Guys, it's a prayer in a public school. Obviously, that doesn't belong.' And the grownups would be like, 'Yeah, obviously, it's separation of church and state. That makes sense.' And it would just come right down," Ahlquist told viewers.

The school committee is planning another meeting on Jan. 24. Residents will be welcome to express their opinions. However, the decision about whether to remove the banner or to appeal the court ruling will be made by the school committee in a private meeting.

Continue reading "Prayer Banner Still Hangs on Cranston West High School Wall" »

In what may be a critical landmark in the struggle for employee rights, the National Labor Relations Board (NLRB) heard a case involving an arbitration agreement requiring employees of a homebuilder to agree to give up their right to join in a class action suit and deemed it an unfair labor practice. The decision comes as a surprise to some, in light of last year’s Supreme Court ruling in AT&T Mobility v. Concepcion that struck down a California rule blocking class action waivers.

The case, D.R. Horton, Inc. and Michael Cuda, was initiated by Cuda, a superintendent at D.R. Horton, who had tried to initiate class action arbitration on his own behalf and that of other superintendents who worked for the builder.

The NLRB ruled that class action waivers have no place in the workplace and employers who make them a condition of employment are engaging in an unfair labor practice. The decision read, in part, "Clearly, an individual who files a class or collective action regarding wages, hours, or working conditions, whether in court or before an arbitrator, seeks to initiate or induce group action and is engaged in conduct protected by Section 7…Such conduct is not peripheral but central to the act's purposes."

The current case had been likened to the case involving AT&T Mobility, with many predicting that the previous case would influence the NLRB’s ruling in the current case. However, the NLRB stated that the AT&T case was about consumer class action suits and had no relevance to D.R. Horton, which the NLRB considered a case about workplace rights that employees are entitled to by the National Labor Relations Act. "Furthermore, AT&T Mobility involved a conflict between the FAA and state law, which is governed by the Supremacy Clause, whereas the present case involves the argument that two federal statutes conflict," according to the ruling.

The decision is expected to be reviewed by the U.S. Court of Appeals.

Although Twitter may have started out as a social networking tool, more and more businesses are using it as a marketing tool. A lot of people have Twitter accounts that they think of as a tool to promote their own careers. Sometimes, in the process of promoting their careers, they may do a little cross-promotion for their employer. After all, if it’s good for the company, it’s good for the employee, usually. “A rising tide lifts all boats,” to quote John F. Kennedy. But if you use your Twitter account to promote your company as well as yourself, then who owns the account?

A current legal case filed with the US District Court in the Northern District of California involving a private individual who used his Twitter account to boost his employer seeks to answer this question. PhoneDog, a mobile products website, is suing its former employee, Noah Kravitz, for $340,000.

PhoneDog says that Kravitz was “given use of” a Twitter account while he worked there, and that he continued to use the account after he left the firm, constituting theft of trade secrets and damage to the PhoneDog’s “business, goodwill, and reputation.”

PhoneDog says that the Twitter account @PhoneDog_Noah was used by Kravitz to “disseminate information and promote PhoneDog's services on behalf of PhoneDog." Kravitz counters that he created the account, linked it to his email address and used it to tweet the things that mattered to him personally, including tweets related to his career and PhoneDog, as well as sports and food, among other subjects.

In fact, says Kravitz, the account wouldn’t work as well if it didn’t combine both personal and career elements. "It's this melding of personal and professional which is why I've gained a modest following," he said in an interview, "Because it's not just the dry headline and link to something."

PhoneDog claims in the lawsuit that it asked Kravitz to drop the account when he left the company. Instead, it claims, he kept the account but changed the handle. Kravitz tells a different story. He says PhoneDog didn’t ask any such thing. Instead, he says, it gave him a green light to keep using the account and even to mention the company. "At no point until July of this year, a good 8 months after we parted ways, did they ask for the twitter account or claim in was their property."

In the lawsuit, PhoneDog claims that Kravitz’ post-employment use of the account is an attempt “…to discredit PhoneDog and destroy the confidence that PhoneDog's users have in PhoneDog."

According to Henry J. Cittone, an intellectual property attorney, the crucial question is going to be whether Kravitz was paid to create the account and to send Tweets. “They said they hired him to create this feed for them. That is the way the company could dislodge a Twitter feed from its owner."

Continue reading "Who Owns Your Twitter Account?" »

The Sylvester Oppenheim & Linde Team Wish You and Yours a Wonderful Holiday Season and a Happy, Healthy & Prosperous New Year

A spokesperson for the Milton Hershey School in Hershey, Pennsylvania announced that the school is the subject of a lawsuit by the family of a 13-year-old honor student who was denied admittance because he is HIV-positive. A spokesperson for the school characterized the action by the child's parents "adversarial."

According to the spokesperson, Connie McNamara, the school refused to admit the boy over concerns about the safety of other students. "In order to protect our children in this unique environment, we cannot accommodate the needs of students with chronic communicable diseases that pose a direct threat to the health and safety of others," said McNamara. "The reason is simple. We are serving children, and no child can be assumed to always make responsible decisions that protect the well being of others."

Federal law, as well as Pennsylvania state law, prohibits schools from refusing to enroll students because they are HIV positive. Officials at the school, which was founded by the late chocolate magnate, assert that, because their school is a boarding school, they are not bound by these rules. "...Children live in homes with 10 to 12 other students...24 hours a day, 7 days a week," said McNamara.

According to the Centers for Disease Control and Prevention (CDC), the school's concerns are unfounded. HIV cannot be spread through casual contact, and other household members cannot contract HIV from toilet seats, silverware, dishes or by touching surfaces an infected person has touched.

Attorneys at the AIDS Law Project of Pennsylvania, a non-profit organization, drew parallels between the current case and the Ryan White case. White, a middle-school student in Kokomo, Indiana, was initially denied the right to attend school because of his diagnosis. In that case, the school also cited the safety of other students as the reason for their actions. White went on to become a celebrated AIDS activist before his death in 1990.

"Like Ryan White, this young man is a motivated, intelligent kid who poses no health risk to other students, but is being denied an educational opportunity because of ignorance and fear about HIV and AIDS," said Ronda B. Goldfein of the AIDS Law Project.

A lot of feathers were ruffled by the recent story about a nine-year-old elementary-school student who was suspended from school for remarking to another student that one of their teachers was "cute." People from all over the country were outraged at what many saw as a case political correctness gone wild. Now it appears as though Emanyea Lockett's school district is equally irritated with the actions of the principal who suspended him.

According to Bonnie Reidy, who is the spokesperson for the Gaston County Schools, "We will be sending an official letter of apology to the parents. Also, the suspension will not count against the child and the child will receive additional instructional assistance to make up for the time out of the classroom."

In addition to the public apology, the district announced that the school's principal, Jerry Bostic, who was the one who made the decision to suspend the boy for sexual harassment, has resigned. According to Bostic, the resignation wasn't his idea. In an interview with the Gaston Gazette, the former principal said the district told him he had an hour to resign or face termination. In an interview with a local television station, Bostic complained about his treatment. "One mistake in 44 years, and I'm not given the benefit of the doubt. I really don't believe I was treated fairly."

Here is the full text of the apology that was issued by the Gaston County Schools: "After a thorough investigation by school officials involving the suspension of a fourth grade student at one of our elementary schools, it has been determined there was no sexual harassment. We regret this situation happened.” The superintendent has attempted to contact the family to offer an apology to the parents and student. The school system is also sending an official letter of apology to the parents and student.

"The suspension will not count against the student and additional instructional assistance will be provided to the student for the classroom time missed. If a concern is reported by parents to the district office, our procedure is to investigate it and follow up with the parents."

Mistakes are sometimes made in schools. It is good to see a school district respond so quickly and positively.

School field trips may become a rare treat at some California schools in the wake of a pending lawsuit that has been brought by the American Civil Liberties Union (ACLU).

The lawsuit, which was filed in 2010, charges that the state of California has neglected to enforce the "free school guarantee" that is mandated by the state's own constitution. The ACLU alleges that charging mandatory fees for educational field trips violates the law.

The suit has led California school districts to re-examine their policies on field trip fees. Typically, it has been assumed that parents will pay fees to cover the cost of school-sponsored educational field trips. Children whose parents do not pay the fees simply fall through the cracks if there are no funds provided by booster groups or other parents to cover their costs.

Children who are left behind when their classmates go on trips may or may not have the opportunity to attend their regular classes. The ACLU claims this practice essentially forces parents to pay additional fees if they want their children to have the same educational opportunities as other students in their schools.

California students are guaranteed the right to a free public education by the State's constitution. Allowable fees are specified in the California Education Code and include fees for such things as optional testing, graduation gowns and caps or tickets for dances and other entertainment activities. Any trip that takes place during school hours and takes students away from their regular classes must be free for all students.

According to Yancy Hawkins, who is the fiscal-services manager for the Palo Alto school district, "We can ask for donations, but it has to be just that." Although his district has had to make few changes, it's not so easy for some districts. "In terms of changing what we're doing, there hasn't been a huge impact, and a lot of that is because of the generosity of this community...Kids weren't being excluded in Palo Alto, whereas in a lot of other districts they were, and I think that's where the lawsuit came in," said Hawkins.

Continue reading "Future of School Field Trips Uncertain in California" »

We at Sylvester Oppenheim & Linde would like to take a moment to wish our clients, family and friends (including our blog readers), a very joyous and happy Thanksgiving.

Whether you are celebrating with a small gathering, or preparing for what is shaping up to be dinner for a small country, we wish you and yours all the very best.

According to a study conducted by Plymouth University, teachers in the UK are increasingly becoming the target of cyber bullying at the hands of students and parents. Andy Phippen, who authored the study, questioned nearly 400 teachers earlier this year about their experiences with cyber bullying. He discovered that 35 percent of the teachers in his sample said that they or a colleague had been the victim of cyber bullying perpetrated by students or their parents.

In an interview, Phippen stated, “Everyone acknowledges this is a problem and something needs to be done about it, but schools lack support. It is a sticky area as some of the things posted may not be considered illegal." Furthermore, British schools have not shown much support for teachers who have been targeted. "I heard of one case where a teacher told his employers about the bullying and not only did they tell other members to staff to ignore this teacher, they also suspended him. Their reasoning was ‘there is no smoke without fire’.”

The study's participants reported incidents of cyber bullying ranging from Facebook postings to abusive Tweets. Phippen was particularly disturbed to discover that 26 percent of the bullying was actually committed by parents. One educator who participated in the study had what she called a "mini breakdown" after a year-long campaign of abuse by a parent. “The parental statistics were particularly surprising," said Phippen. "Schools are definitely playing down the severity of the issue, whether it’s because they just don’t realize, or because they don’t know how to deal with it.”

Phippen wants to change that and thinks Britain needs a nationwide support network to address the problem. Although I am not aware of any similar study in the US, it's (unfortunately) a safe bet that it's happening here. In recent years American courts have heard several cases in which students were suing over punishments meted out by schools for mocking or insulting posts made outside of school.

The Fontana Unified School District is the subject of a lawsuit filed by the teachers union in the San Bernardino County Superior Court. The suit is demanding that the school district reinstate counselors that the district laid off. The teachers union alleges the counselors should be allowed to return to work on the basis of seniority.

The teachers union claims that the Fontana Unified School District has violated the California Education Code. According to the lawsuit, the district let 68 counselors go after the 2010-2011 school year, then created two new job titles for what was essentially the same position and attempted to hire 42 new counselors.

According to Pat Mazzulli, president of the Fontana Teachers Association, the new counselor positions are “substantially similar” to the old counseling positions. “Rather than follow procedure in the Education Code, the FUSD made reduction in force counselors reapply and interview for their jobs. FUSD attempted to hire outside the district as well," Mazzulli said. According to Mazzulli, the California Education Code requires that the laid-off counselors be given the opportunity to accept or refuse substitute slots before the jobs are offered to new applicants.

The Fontana Unified School District denies any wrongdoing and insists the new counseling positions are entirely different from the old ones. William Wu, assistant superintendent of human resources for the school district, said in an interview that "the district reviewed the comprehensive counseling program, tailored it to the needs of the district and then created new district positions to provide better and different student services…They are not the same as the comprehensive counseling program." Furthermore, said Wu, “The district is not in the business of violating peoples' rights. We are in the business of serving children, but we are not in the business of violating peoples' rights in the process.”

However, the school board has postponed plans to hire applicants for the new positions. According to Mazzulli, no trial date has been set.

Continue reading "Lawsuit Alleges: New Positions a Ruse to Hire New Counselors " »

Reports of schools violating NCAA regulations by providing incentives to student athletes are nothing new. Numerous universities have been sanctioned for such violations in recent years, including the University of Miami, Ohio State University and the University of Southern California, among others. The most recent scandal, involving the University of North Carolina, offers a new twist on an old theme, however. The UNC scandal is notable because it was social media that first alerted NCAA officials that something was amiss. Tweets made by a student player on Twitter revealed that he was receiving unsanctioned benefits from the school.

In the NCAA’s Notice of Allegations, UNC was cited for failing to properly monitor the use of social media by student athletes. In response to the NCAA’s unprecedented actions in this case, universities across the nation have taken steps to limit, and in some cases, entirely prevent, athletes’ use of social media. These actions put schools in the precarious position of trying to restrict the First Amendment rights of their student athletes, most of whom are adults.

Some schools have stopped short of forbidding student athletes from using social media altogether, making mandatory monitoring a condition of team membership. Others have ventured even further into shaky legal ground by enforcing a total prohibition on social media use for all student athletes. Because the Supreme Court has made it clear that university students give up none of their First Amendment rights when they enroll, curtailing these rights leaves a university vulnerable to legal action from student athletes. It could be argued that banning student athletes from using social media rises to the level of a prior restraint on speech.

In the event of a legal challenge, universities will be forced to defend themselves in court and may end up paying damages. A more proactive approach might be to put an end to inappropriate incentives for student athletes, rather than taking questionable steps to prevent the athletes from telling anyone they are receiving them.