SCR is a premier property and liability program for K-12 public school districts across southern California, and CMDA is proud to serve on their Attorney Panel.

Seminar topics included an overview of the challenging insurance marketplace and relevant trends; a discussion on how professionals are best incorporating the use of artificial intelligence into their daily workload and important risk management methods to implement to mitigate potential exposure using these platforms; and a summary of the key components of the Governor’s 2026-27 State Budget proposal.

Mr. Ferris enjoyed attending the conference and networking with SCR members while sharing insight and strategies on navigating liability issues impacting public school districts.

Daniel W. Ferris is a partner in our Riverside office where he focuses his practice on public entity defense, insurance defense, civil litigation, and education law. He manages cases from inception through trial, including preparing pleadings, motions, and briefs, managing discovery, taking and defending depositions, and handling court appearances, mediations, arbitrations, and trials. Additionally, he writes briefs for submission to all levels of state and federal courts and performs legal research and writing for all areas of law handled by the Firm. He may be reached at (951) 276-4420 or dferris@cmda-law.com.

The trial lasted 14 days, and in closing the plaintiff asked the jury to award Forty-Seven Million Dollars ($47,000,000.00) for pain and suffering. Mr. Miller asked the jury to attribute $300,000 in damages to the school district and attribute 50% of the fault to the plaintiff.

On October 10, 2024, the San Bernardino jury returned a verdict that requires the school district to pay plaintiff $315,000. The jury also found plaintiff to be 40% at fault. This result is well below the school district’s statutory offer to compromise made one month before trial. As a result, the school should recover its expert fees out of that award.

Ryan Miller is a conscientious and innovative litigator who focuses his practice on public entity defense, personal injury, labor and employment law, business disputes, medical malpractice, and premises liability. He is dedicated to obtaining the best results possible for his clients. His knowledge of the law and passion to fulfill the needs of his clients support his ability to achieve quality and successful outcomes. He may be reached at (951) 276-4420 or rmiller@cmda-law.com.

Daniel Ferris focuses his practice on public entity defense, insurance defense, civil litigation, and education law. He is an experienced attorney who manages cases from inception through trial, including preparing pleadings, motions, and briefs, managing discovery, taking and defending depositions, and handling court appearances, mediations, arbitrations, and trials. He may be reached at (951) 276-4420 or dferris@cmda-law.com.

Recently, two separate courts agreed with CMDA that the lawsuits two former community college instructors filed against the college should be dismissed.

The underlying facts showed that two full-time instructors were involved in a series of conflict resolution sessions where both parties were advised to be civil and follow the rules of the college. The evidence also showed that when one of the full-time instructors was going up for tenure, the two plaintiffs, a former full-time tenured instructor and a former part-time instructor, engaged in a whisper campaign to disparage and discredit the instructor who was trying to achieve tenure status. The two plaintiffs involved students in their efforts to compromise the other instructor’s efforts to attain tenure. The solicited students wrote anonymous and negative e-mails to the college’s administration at the same time the instructor was going up for tenure. When the instructor seeking tenure filed complaints about their behavior, the college’s internal investigations resulted in recommendations that both plaintiffs be terminated.

Following their terminations, both plaintiffs sued. The part-time instructor alleged in a federal court lawsuit that she was retaliated against and fired contrary to the anti-retaliatory provisions of Title IX because she gave favorable witness statements on behalf of her colleague for the underlying Title IX investigation. This plaintiff’s economist expert quoted her damages as exceeding $300,000. The full-time instructor filed a lawsuit in state court alleging that he was a “whistleblower” who was fired in retaliation for making a FERPA (Family Educational Rights and Privacy Act, 20 U.S.C. §1232g) complaint with the college. This plaintiff’s economist expert quoted his damages as exceeding $1.5 million. The unfortunate part of the case was that the identity of the anonymous students was outed and that is why the plaintiff filed a FERPA complaint. As it turns out, however, had the plaintiff not involved students in his efforts to discredit the tenure seeking instructor, the students would not have been drawn into an employment dispute at the college in the first place.

Both the Federal Court and the State Court granted the college’s Motions for Summary Judgment and Summary Disposition respectively. The Federal Court Judge found that the plaintiff’s evidence did nothing to show that her Title IX testimony in support of her colleague was a significant factor contributing to the recommendation that her part-time teaching position not be renewed. Further, the Court found that the college articulated legitimate and non-discriminatory reasons for not re-appointing the plaintiff and that there was no illegal pretext discrimination.

Likewise, the State Court Judge found that the plaintiff had not presented a prima facie case of whistleblower retaliation because he could not prove through direct or circumstantial evidence that he was fired because he made a FERPA complaint. The Court agreed that the evidence undisputedly and objectively demonstrated through the findings of the internal investigations, that the plaintiff should be terminated because of egregious behavior toward a fellow colleague, violations of confidentiality and inappropriately engaging students in an employment dispute.

One plaintiff in this case has very recently filed an appeal, which CMDA is currently vigorously defending.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law. She may be reached at (734) 261-2400 or erae@cmda-law.com.

In this case, the Supreme Court said yes. On February 22, 2017, the Supreme Court published its ruling in Fry et vir, as Next Friends of Minor E.F. v. Napoleon Community Schools et al Fry 580 U.S. __ (2017), in which the court sought to clear up confusion about how the IDEA, ADA, and Section 504 interact. Five justices signed off on the majority opinion, with Justices Alito and Thomas writing a separate concurrence.

The court’s opinion dealt with the confusion that occurs when a violation of a disability right is alleged in the educational setting.  In addition to the IDEA, in 1986 Congress passed the Handicapped Children’s Protection Act, 20 U.S.C. §1415(l), establishing a “carefully defined exhaustion provision” indicating that a person seeking relief under the ADA, Section 504 or similar laws available under the IDEA must first exhaust IDEA’s administrative remedies. The issue in Fry was when does §1415(l) actually come into play. Fry helps clear up when the IDEA administrative remedies must be satisfied.

First, where the gravamen of the lawsuit does not involve a denial of a FAPE under the IDEA, there is no requirement to satisfy the IDEA’s administrative requirements. If the lawsuit alleges the student was denied a FAPE, then IDEA’s administrative requirements apply, even if the lawsuit is brought under the ADA or Section 504 – and does not cite an IDEA violation.

The court noted that there is some overlap between the statutes.  It is important to look at the central issue of the case, and the nature of relief being sought. The court offers a suggested diagnostic test in the form of two hypothetical questions to determine whether the IDEA and FAPE are at play. First, could the plaintiff have brought the same claim against another public facility that was not a school? Second, could an adult at the school have brought essentially the same claim? If the answer is yes to these questions, it is unlikely the complaint involves a claim under the IDEA.

In addition, the court notes that prior actions by the plaintiff should be considered. If the IDEA administrative remedies were pursued earlier in the process, those efforts may be, in the court’s words, “strong evidence that the substance of the plaintiff’s claim concerns a denial of FAPE, even if the complaint never explicitly uses that term.” Fry at Page 3 ¶1(b).

The partial concurrence by Justices Alito and Thomas gives an insight into how plaintiffs may attempt to counter the holding in Fry. Justices Alito and Thomas disagree with the majority’s suggested diagnostic test. The hypothetical questions are based on a claim that there may be some overlap between the IDEA, ADA, and Section 504. Justices Alito and Thomas do not see any overlap, therefore there is no need for the diagnostic test, and, accordingly, plaintiffs may seek to challenge any associated analysis. Secondly, Justices Alito and Thomas note parents may begin the investigation process thinking they should pursue an IDEA cause of action, only to learn they are going down the wrong path towards relief or decide they want a different form of relief, something the IDEA does not provide.

Justices Alito and Thomas’ concern about using pre-litigation efforts to establish whether a case’s core issues involve a FAPE violation under the IDEA is reasonable. There does, however, appear to be interconnections between the IDEA, ADA, and Section 504 from the way the term “disability” is defined to the way the laws interact. For example, Section 504 addresses the concept of FAPE, which the IDEA and the 1986 Handicapped Children’s Protection Act build upon.

No solution is perfect, but the Fry decision does give defense attorneys a stronger hand when faced with education-related lawsuits that try to avoid the administrative requirements outlined under the IDEA.

Christopher A. McIntire is an attorney in our Riverside, CA office where he focuses his practice on public entity defense, employment law, premise liability and mass tort defense. He may be reached at (951) 276-4420 or cmcintire@cmda-law.com.

Although the “Dear Colleague” letter is not a congressional statute, executive order, or even a regulation, it is a directive that the federal government refers to as “significant guidance.”  School districts, including the country’s 16,500 public school districts, post-secondary colleges, 7,000 universities and trade schools, charter, and for-profit schools are now on notice regarding how the federal government interprets Title IX, the 1972 law that prohibits sex discrimination in education, as it relates to the rights of transgender individuals.  As a condition of receiving federal funds, a school must agree that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities unless expressly authorized to do so under Title IX.  The “Dear Colleague” letter noted that as consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.  The directive carries with it the implied threat that failure to follow the federal government’s interpretation could result in the loss of federal education funding.

The directive noted that when a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.

From a practical standpoint, the directive states that schools cannot require transgender students to use their own private bathrooms unless it does the same for all students.  A school may come up with alternate facilities, for example a single-user restroom, as long as these options are available for all students who voluntarily seek additional privacy.  Other practical solutions could include putting up curtains in locker rooms for more privacy or allowing differing schedules by transgender students to use facilities as long as these differing schedules are not required.

Additional considerations addressed in the directive include that teachers and staff cannot use a transgender student’s birth name or pronoun and school records must reflect the student’s chosen name and gender identity.  Schools with sex-segregated accommodations for overnight field trips must allow transgender students to sleep with students of their chosen gender.  Schools may offer single-occupancy sleeping rooms, but transgender students may not be required to use them unless all students have access to them.  Athletic teams are allowed to segregate by sex, as long as they provide equal opportunity for both sexes.

Additionally, on April 19, 2016, the U.S. Court of Appeals for the Fourth Circuit deferred to the U.S. Education Department’s position that transgender students should have access to bathrooms that match their gender identities rather than being forced to use bathrooms that match their biological sex.  This case is entitled G.G. v Gloucester County School Board, No. 152056, and concerns a high school junior’s complaint that transgender students should have access to bathrooms that match their gender identities not their biological sex.  In a 2-1 decision, the Fourth Circuit ordered the lower court to rehear the student’s claims that the school board’s policies, which restricted transgender students to using a separate unisex bathroom, violated Title IX.  The Court also ruled that the lower court should reconsider a request that would have allowed the teen to use the boy’s bathroom at the high school while the case was pending.  The Fourth Circuit is the highest Court in the country to address the question of whether bathroom restrictions constitute sex discrimination and could be persuasive for the Sixth Circuit, which includes Michigan.  CMDA will continue to monitor this issue.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law.  She may be reached at (734) 261-2400 or erae@cmda-law.com.

Laws That Impact All Students:

IDEA
The Individuals with Disabilities Education Act (IDEA) is a federal law governing special education service delivery for students aged 3-21 or until high school graduation. An educational team develops the Individualized Education Plan (IEP) for each child to ensure that the student is successful in the K-12 system.

Section 504
Section 504 of the Rehabilitation Act of 1973 protects individuals from discrimination on the basis of their disability. Subpart D of the Act applies to K-12 schools and subpart E applies to post-secondary institutions. The K-12 educational team will develop a 504 plan when a student is in need of certain accommodations to either the physical space or the learning environment. If there is a need for special education, the student will be given an IEP. Subpart E of the Rehabilitation Act indicates that post-secondary students must be given the opportunity to compete with their non-disabled peers.

ADA
The Americans with Disabilities Act of 1990 (ADA) is a federal law designed to provide equal opportunity for individuals with disabilities and protects these individuals from discrimination.

In sum, the IDEA, §504 of the Rehabilitation Act and the ADA are laws designed to ensure that students are successful in the K-12 system. The ADA and §504 of the Rehabilitation Act ensure equal access for college students.

Differing Responsibilities:

Identification
K-12: At the K-12 level, the school is responsible for identifying students with disabilities, testing and providing services.

College: Students must locate the office that provides services for students with disabilities, identify him or herself, request accommodations, and provide adequate documentation supporting the need for accommodation.

Services
K-12: Students may be assigned time to attend a resource room where a teacher who is specifically trained in working with students with disabilities provides instruction.

College: The student must make his/her own appointments at a learning center where services are usually the same for all students.

Communications
K-12: Students may have a plan that requires follow-up by school staff to inform the parents of the student’s academic performance, completion of homework and testing.

College: A college may not, by law, contact the student’s parents regarding his/her academic performance unless the student gives the college permission to do so. Parents must ask the student directly or the student may give the college permission to release such information with written documentation.

Accommodations
K-12: It is the school’s responsibility to provide for and arrange a formal IEP or 504 plan for the student to receive accommodations.

College: The student must request his/her accommodations. For testing accommodations, the student must provide the appropriate office (e.g. Academic Support Center) with the dates and times of his/her exams. Colleges are not responsible for knowing a student’s schedule and providing accommodations without some form of instruction by the student.

Instruction and Tests
K-12: Teachers may change the curriculum or assignments as outlined in the IEP or 504 plan.

College: Colleges must provide qualified individuals with a disability equal access to their programs and activities. Access could include academic adjustments, auxiliary aids, more time on tests, and services that do not constitute an undue burden or fundamental alteration of the program or activity. Post-secondary institutions, however, do not need to provide academic adjustments that would fundamentally alter the educational standards of the coursework or change the course requirements.

Goals
In the K-12 setting, accommodations and services are created to maximize a student’s potential to ensure success. At the post-secondary level, accommodations are given to ensure equal access. In general, the burden of responsibility shifts from the school in the K-12 setting to the individual student in the college setting. College students must contact disability support services, prove eligibility for accommodations, and make their needs known. Accommodations do not apply retroactively and grades do not have to be changed for work completed before accommodation eligibility is established.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on education law, municipal law and labor and employment law. She may be reached at (734) 261-2400 or brae@cmda-law.com.

Developments in the law suggest service animals that assist autistic individuals are growing in popularity and school districts throughout the country should be aware of their potential obligation under the law to allow them.   To ignore these trends is to expose a school district to greater risk.

A school district’s defense based on allergies, fear of dogs, or risk of dog bites are not enough to outweigh the perceived benefits for the disabled student.  When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.

The Central District of California addressed this issue in the 2010 case of C.C. v. Cypress School District.  Student C.C. sought to prevent the district from denying him and his service dog access to the school and its programs.  It was argued that C.C.’s service dog prevented the student from running away; comforted the student by providing “deep pressure” upon command by a third-party handler; read the student’s anxiety and nudged him upon command by a third-party handler; and carried the student’s materials for him.

Despite the school district’s argument that the functions the service dog provided were “emotional support, well-being, comfort, or companionship,” roles specifically excluded for service animals in the Americans with Disabilities Act, the Central District Court issued the preliminary injunction, requiring the school district to allow the service dog to go to school with the student.  The ruling is telling as to how the courts may interpret the definition of “service animal” for students with emotional, developmental, and/or neurologic conditions, especially since effective treatment for autism is not well established, making it difficult to measure anything but the actual behavior of the individual afflicted with it.

Entities that maintain places of public accommodation, including schools, should be vigilant in ensuring all appropriate accommodations for disabled persons are available.

Ryan D. Miller is an attorney in our Riverside, CA office where he focuses his practice on employment and labor law, general liability defense and prevention, education law, and municipal law.  He can be reached at (951) 276-4420 or rmiller@cmda-law.com.

Maurice S. Kane is an attorney in our Riverside, CA office where he focuses his practice on employment and labor law, general liability defense and prevention, education law, personal injury defense litigation, and products liability law.  He can be reached at (951) 276-4420 or mkane@cmda-law.com. 

In a thorough examination of the text, structure and history of Title VII, including the Civil Rights Act of 1991, Justice Kennedy said that retaliation cases should have a higher standard of proof than in regular employment discrimination cases under Title VII. In a typical discrimination case, employers can be liable if wrongful discrimination is a “motivating factor” in the employment decision.

The case concerns Naiel Nassar, a physician of Middle Eastern descent, who resigned from his university position claiming illegal discrimination from a supervisor based upon unlawful considerations of his religious and ethnic heritage. He further claimed he was retaliated against and was not allowed to keep his job at an affiliate hospital due to his complaints. The university’s Chair of Internal Medicine had protested the plaintiffs continued employment at the affiliate hospital because once an employee resigned from the university, they could no longer work at the hospital pursuant to an underlying agreement.

Mr. Nassar sued the university claiming racial and religious discrimination and retaliation. Originally, the jury found for the plaintiff on all counts and awarded him $400,000 in back pay and $3,000,000 in compensatory damages, later reduced to $300,000 by the District Court. The Court of Appeals affirmed in part and vacated in part, but affirmed the retaliation award ruling that the Chair of Internal Medicine was motivated, at least in part, to retaliate against the plaintiff for his complaints about his supervisor. The Supreme Court granted review of the case on the issue of the proper standard of causation for Title VII retaliation claims because the U.S. Circuit Courts of Appeals were divided on the correct standard. Up until this case, the First, Sixth and Seventh Circuits required plaintiffs to show there would have been no adverse action but for the plaintiff’s complaint, while the Fifth and Eleventh Circuits required plaintiffs to show that a desire to retaliate was a “motivating” factor on the employer’s part.

Justice Kennedy noted that the proper causation standard in retaliation cases was needed because the number of such cases with the EEOC had nearly doubled in the last 15 years, rising to more than 31,000 in 2012. Ultimately, the Court vacated the Fifth Circuit’s decision and remanded the case for further proceedings consistent with the Supreme Court’s decision.

In sum, employers who are now defending Title VII retaliation cases can successfully argue that the plaintiff has the burden of proving that he or she would not have experienced a negative employment action “but for” his or her prior complaint. In turn, the employer is not liable if it would have taken the same action, i.e., discipline, termination or not hired an applicant for other non-discriminatory reasons. Further, defendants in Title VII retaliation claims may also consider if they have grounds to ask for reconsideration if prior Court rulings have allowed a plaintiff to use a “motivating” factor standard. Finally, an employer’s best protection against retaliation claims continues to be written documentation demonstrating legitimate non-discriminatory business reasons for taking unfavorable employment actions against employees.

Elizabeth Rae-O’Donnell, an attorney in our Livonia office, concentrates her practice on municipal law and labor and employment law. She can be reached at (734) 261-2400 or brae@cmda-law.com.

In California, a school district can be found liable for sexual abuse committed by an employee if the court finds the district negligent in hiring or supervising the employee. As a result, all school district employees must be proactive in reporting any action of a fellow employee that appears to be inappropriate, such as:

Does the interaction between a school employee and a student feel uncomfortable to the employee observing it?
Does a school employee have contact with a student after school in a private setting such as at a site off campus?
Does a school employee make “friends” with students?
Does a school employee behave more like the student’s peers than like an adult?

According to Dr. Carla Van Dam in her book Identifying Child Molesters – Preventing Child Sexual Abuse these are indicators that inappropriate conduct may be occurring.

Unfortunately, many employees may turn a blind eye when it comes to inappropriate conduct of their co-workers. A failure to report some suspicion of inappropriate conduct with a student could be used to show negligent supervision, even if that suspicion was witnessed by a fellow employee and not a direct supervisor.

The investigation should involve at least two people for all interviews, investigation and evidence collecting. An attorney should be part of the investigation. Any notes, memos or investigation reports should be directed to counsel so the attorney client privilege attaches. In that way, the documents will not have to be turned over to the other side if litigation ensues. Even though the document is directed to an attorney, other people in the district can still be copied on it.

If there is a report that inappropriate sexual conduct may have occurred, the school district should immediately offer counseling services to every student, parent, family member or staff member who may be affected by the allegation. Even if the molesting employee quits, the investigation must continue and any and all evidence turned over to the police. There can be no agreement with the employee to withhold information, remain silent about the subject of the investigation or stop the investigation.

In order to avoid liability, it is imperative that all employees be proactive. Proactive employees report to the district any conduct which appears suspicious or inappropriate, as well as reporting to the appropriate agency conduct which causes a “reasonable” suspicion that abuse has occurred. It is also imperative that a full and well documented investigation occur and if the investigation reveals that inappropriate sexual conduct has occurred that the police and parents are immediately notified.