Archives

Supreme Court Rejects Judge Gorsuch’s View of Special Education Law

The Supreme Court’s decision in Endrew F. v. Douglas County School District was bad timing for Supreme Court nominee Judge Neil Gorsuch.

The Supreme Court held unanimously that public school districts must offer students with disabilities an individual education plan (IEP) “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

The Court rejected the Tenth Circuit’s holding that an IEP must merely confer “some educational benefit” that is “more than de minimis.”

This ruling came down while Judge Gorsuch was testifying before the Senate Judiciary Committee. Judge Gorsuch was the author of a 2008 opinion Continue reading

 

Supreme Court Will Not Decide Transgender Bathroom Case

The Supreme Court will not decide—at least not this term—whether transgender students have a right to use the bathroom consistent with their gender identity due to changes in position on this issue from the Obama to Trump administration.

Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex” they must provide comparable facilities for the other sex.

In a 2015 letter the Department of Education (DOE) interpreted the Title IX regulation to mean that if schools provide for separate boys’ and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. DOE and the Department of Justice reaffirmed this stance in a May 2016 “Dear Colleague” letter.

On February 22, 2017, DOE issued a “Dear Colleague” letter withdrawing the previous letters. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity.

G.G. is transgender. The Gloucester County School Board prevented him from using the boy’s bathroom. He sued the district arguing that is discriminated against him in violation of Title IX.

Continue reading

 

What Happens Now to Supreme Court Transgender Bathroom Case?

The fate of the most controversial case the Supreme Court has agreed to decide this term is uncertain now that the Department of Education (DOE) has issued a “Dear Colleague” letter withdrawing a previous letter requiring school districts to allow transgender students to use the bathroom consistent with their gender identity.

Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex” they must provide comparable facilities for the other sex. In a 2015 letter, DOE interpreted the Title IX regulation to mean that if schools provide for separate boys’ and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity.

G.G. is biologically female but identifies as a male. The Gloucester County School Board prevented him from using the boys’ bathroom. He sued the district arguing that it discriminated against him in violation of Title IX. Continue reading

 

Supreme Court Rules GPS Monitoring of Sex Offenders is a Fourth Amendment Search

Beginning in the mid-2000s numerous states adopted “Jessica’s” laws requiring GPS monitoring of certain sex offenders.  These statutes have been challenged on a number of grounds—including that they violate the Fourth Amendment’s prohibition against unreasonable searches.  Eight states, including North Carolina, monitor sex offenders for life.

The Supreme Court ruling that GPS monitoring of certain sex offenders is a Fourth Amendment search doesn’t invalidate these statutes.  But if the lower court—and ultimately the Supreme Court—rule GPS monitoring is an unreasonable Fourth Amendment search—state statutes nationwide could be unconstitutional.

Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

Fourth Circuit

Fifth Circuit

Sixth Circuit

Eighth Circuit

Ninth Circuit

Tenth Circuit

(12/15/2014-12/19/2014)

Image courtesy of Flickr from Ken Lund (creative-commons license, no changes made).

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Catching up on recent published decisions involving local governments:court collumn

First Circuit

  • S. Kingstown Sch. Cmte v. Joanna S., No. 14-1177 (Dec. 9, 2014): The court ruled in Individuals with Disabilities in Education Act (“IDEA”) case that settlement agreement relieved school committee of obligation to perform or fund evaluations, and remanded to determine whether Joanna S. is entitled to attorney’s fees.

Second Circuit

Fourth Circuit

Fifth Circuit Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

Fourth Circuit

Sixth Circuit

 

Supreme Court Accepts Obamacare Case

Last Friday the Supreme Court’s docket went from boring to big with the grant of just one case:  King v. Burwell.  The issue in this case is whether tax credits for low and middle income health insurance purchasers are available under the Affordable Care Act (ACA) if insurance is purchased on a federal exchange rather than a state exchange.  Only 16 states and the District of Columbia have established exchanges. Supreme Court3

The ACA makes tax credits available to those who buy health insurance on exchanges “established by the State.”  The Internal Revenue Service (IRS) interpreted that language to include insurance purchased on federal exchanges too.

The Fourth Circuit in King v. Burwell upheld IRS’s interpretation, concluding that “established by the State” is ambiguous, when read in combination with other sections of the ACA, and could include federal exchanges.  The “board policy goals of the Act,” persuaded the court that the IRS’s interpretation was permissible.

The implications of the Supreme Court ruling that health insurance purchased on federal exchanges is not eligible for subsidies is huge.  Many people who want to buy insurance on the exchange would no longer be able to afford it without the subsidy.  And many who don’t want to buy insurance, depending on their income, would no longer be subject to the individual mandate that penalizes people for not buying insurance.  Similarly, large employers that don’t offer health insurance to fulltime employees would no longer have to pay a penalty.

More significantly, the Fourth Circuit (and many others) predict the ACA would “crumble” if tax credits are unavailable on federal exchanges.  The ACA bars insurers from denying coverage or charging higher premiums based on a person’s health.   The tax credit combined with the individual mandate was intended to create “an influx of enrollees with below-average spending for health care,” which would counteract adverse selection, where individuals disproportionately likely to use health care drive up the cost.  Such an influx is unlikely without the subsidy.

The Supreme Court generally hears cases when there is a circuit split, meaning two federal courts of appeals have decided the same issue differently.  Many were surprised when the Court agreed to hear this case given there is currently no circuit split, especially considering that last month the Court refused to hear a series of cases challenging the constitutionality of same-sex marriage bans.  However, the Court also accepts cases involving “important question[s] of federal law,” which this case seems to raise.

On the same day in July a three-judge D.C. Circuit panel ruled opposite to the Fourth Circuit.  The entire D.C. Circuit was going to rehear the case, but it has been asked to not rule in that case pending Supreme Court resolution of King v. Burwell.

Wondering how the Supreme Court may rule?  SCOTUSblog offers an excellent symposium on this topic.

Image courtesy of Flickr from Kjetil Ree (creative-commons license, no changes made).

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

Third Circuit

  • Thorpe v. Borough ofJim Thorpe, No. 13-2446 (Oct. 23, 2014): The court reversed district court’s conclusion that Native American Graves Protection and Repatriation Act requires the Borough to disinter Jim Thorpe. In the court’s view, “Congress could not have intended th[is] kind of patently absurd result.”

Fourth Circuit

 

What’s Next for Same-Sex Marriage?

For the six reasons Lyle Denniston describes on SCOTUSblog, the Supreme Court’s announcement on Monday that it would not hear any of the seven petitions striking down same-sex marriage bans was stunning.5554035521_f6b59ccafa_n  Even though there was no circuit split, conventional wisdom indicated the Court would decide the issue because of its importance and because both sides asked the Court for review.

Amy Howe also of SCOTUSblog and Scott Michelman writing on SCOTUSblog speculate as to the why the Court’s liberals and conservatives may have decided not to get involved in the issue now.  In short, the liberals had nothing to lose by waiting, and both side face uncertainty about Justice Kennedy’s position on the issue.

To understand where were are today with same-sex marriage a timetable is helpful.

  • On Sunday, 19 states recognized same-sex marriage.
  • On Monday, 11 more states were added from the Fourth (Virginia, West Virginia, North Carolina, and South Carolina) Seventh (Wisconsin and Indiana) and Tenth Circuits (Utah, Oklahoma, Colorado, Kansas, and Wyoming).
  • On Tuesday 5 more states were added when the Ninth Circuit (Idaho, Nevada, Alaska, Arizona, and Montana) struck down the Idaho and Nevada same-sex marriage bans.  (Implementation of this decision is still being worked out).

Technically, Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

Fourth Circuit

  • Cherry v. Mayor and City Council of Baltimore City, No. 13-1007 (Aug. 6, 2014): In case brought by active and retired Baltimore police officers and fire fighters who participate in City’s pension plan, reversing district court’s decision that the City had violated the Contract Clause and affirming that the City had not violated the Takings Clause by changing how it calcualtes pension benefits.

Fifth Circuit

  • Thompson v. Mercer, No. 13-10773 (Aug. 7, 2014): In 1983 action against officer who shot and killed individual who had stolen vehicle and led police on a two-hour, high-speed chase, affirming grant of qualified immunity to officer because use of deadly force was not a constitutional violation.
  • Sullo & Bobbitt v. Milner, No. 13-10869 (Aug. 6, 2014): In unpublished decision, affirming dismissal of case brought by attorneys claiming First-Amendment right to access misdemeanor court records within one day of their filing.

Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:

SCT stairs[Update: I added the Ninth Circuit’s Daubert decision. (7/31)]
Second Circuit

Carter v. Inc. Vill. of Ocean Beach, No. 13-815 (July 21, 2014): Affirming award of attorney’s fees to County defendants in case brought by former police officers alleging wrongful termination and defamation.

Cox v. Onondaga Sheriff’s Dept., No. 12-1526 (July 23, 2014): Affirming dismissal of complaint alleging Title VII retaliation for racial-harassment claims.

Reyes v. New York City Dept. of Ed., No. 13-158 (July 25, 2014): Finding that under IDEA, proposed IEP and school placement failed to provide student with free appropriate public education.

Fourth Circuit Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments, a couple days late this week:Alexandria-court

Second Circuit

E.M. v. New York City Dept. of Ed., No. 11-1427 (July 11, 2014) (in IDEA case, concluding that district court improperly concluded that IEP was adequate by relying on retrospective evidence extrinsic to the IEP).

Fourth Circuit

Lefemine v. Wideman, No. 13-1629 (July 11, 2014) (reversing determination that successful plaintiff in 1983 First-Amendment case was not entitled to attorney’s fees). Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:SCT stairs

Second Circuit

Fourth Circuit

 

Fourth Circuit: Retirement Plan Discriminates Based on Age

A County retirement-benefit plan requires an employee to contribute a percentage of his salary to the plan.Retirement

But not all employees contribute at the same rate.

Instead, an older employee must contribute at a higher rate than a younger employee who enrolls at the same time.

Does this violate the Age Discrimination in Employment Act?

The Fourth Circuit, in EEOC v. Baltimore County, No. 13-1106 (Mar. 31, 2014), said that in the case of Baltimore County’s plan, it does.

In the court’s view, Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:SCT pillars

Second Circuit

Third Circuit

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:NinthCircuit

Third Circuit

  • M.R. v. Ridley School District, No. 12-4137 (Feb. 20, 2014) (finding under Individuals with Disabilities in Education Act that for “stay put” period: (1) school district must reimburse parents for private-school costs even if parents do not file a claim for payment until after a court has ruled for the school; and (2) the parents’ right to interim funding extends through the time of judicial appeal.).

Fourth Circuit

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments*:Alexandria-court

First Circuit

Fourth Circuit

Fifth Circuit Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:SCT stairs

Second Circuit

  • McColley v. County of Rensselaer, No. 12-2220 (Jan. 21, 2014) (affirming that whether officer and County were entitled to qualified immunity for alleged Fourth-Amendment violation arising out of search-warrant-application omissions turned on genuine issues of material fact, and concluding therefore that the court lacked subject matter jurisdiction).

Fourth Circuit

  • Corr v. Metropolitan Washington Airports Authority, No. 13-1076 (Jan. 21, 2014) (finding that tolls paid by drivers on the Dulles Toll Road are user fees not taxes, and that their collection by airport authority does not violate Virginia Constitution and motorists’ due-process rights).

Seventh Circuit Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments. They include two unsuccessful due-process challenges — one to speed-camera programs, the other to booking fees:Gavel

Second Circuit

Fourth Circuit

Seventh Circuit Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are published decisions involving local governments from the federal appellate courts from November 25, 2013 through December 6, 2013:

Second Circuit

Fourth Circuit

Seventh Circuit

Ninth Circuit

 

 

Fourth Circuit: Can a County Limit Waste Disposal to Public Landfills?

A County ordinance provides that waste generated in the County can be disposed at only a single location — a publicly owned landfill:Landfill

The dumping or depositing by any person at any place other than at the designated facilities of any acceptable waste generated within the County is prohibited.

The County crafted the ordinance to further many public benefits: to conserve resources, to prevent pollution, and to protect the public health, safety, and well-being. For the public landfill, the ordinance also ensured a revenue stream.

But for a private landfill operator located just two miles from the County line, the ordinance was a real problem. The ordinance led to a significant decrease in its business.

The operator sued the County. It argued that the County ordinance violates the dormant-commerce clause and the equal-protection clause of the federal constitution. Is the operator correct?

In Sandlands C&D LLC v. County of Horry, No. 13-1134 (Dec. 3, 2013), the Fourth Circuit ruled against the operator. It upheld the district court’s grant of summary judgment for the County.

Applying the Supreme Court’s decision in United Haulers Ass’n v. Oneida-Herkimer Solid Waste Management Authority, 550 U.S. 330, 346 (2007), the court ruled that Continue reading

 

How To Close a First Amendment Public Forum: Does a Local Government’s Intent Matter?

Fourth Circuit: a local government can “close” a public forum with a neutral policy, regardless of its intent.

Fourth Circuit: a local government can “close” a public forum with a neutral policy, regardless of its intent.

Your City has flag standards on light poles. They line the City streets.

For over 15 years, you have allowed private parties to use this property to place their own flags.

Now you have a problem.

A group wants to use this City property to fly the Confederate flag during a City parade. The public is fiercely opposed.

After your City council first approved the request, it changed course. Its new policy restricts flag-standard use to three flags: the American, State, and City flags.

The group sued. It claimed that the City’s change violates its First Amendment rights.

Can you successfully defend the City’s policy?

In a similar case, the Fourth Circuit recently said yes.

Continue reading