Governor Hickenlooper signed the “Job Protection and Civil Rights Enforcement Act,” HB 13-1136, on Monday, May 6, 2013. HB 13-1136 - Concerning the Creation of Remedies in Employment Discrimination Cases Brought Under State Law, by Reps. Claire Levy and Joe Salazar and Sens. Morgan Carroll and Lucia Guzman, establishes provisions for complaining parties who have exhausted administrative remedies to bring actions in state court. It also allows claims to be brought by employees of companies with fewer than 15 employees, which are exempt under Federal anti-discrimination provisions.

On May 5, the governor signed one bill, SB 13-176 - Concerning Authorization for the State Treasurer to Invest State Moneys in Debt Obligations Backed By the Full Faith and Credit of the State of Israel. This bill was sponsored by Sens. Mark Scheffel and Morgan Carroll and Reps. Justin Everett and Angela Williams, and it authorizes the state treasurer to invest state moneys in Israeli bonds.

The governor signed 10 bills on Friday, May 3, 2013. Three of the ten bills signed are summarized here.

• SB 13-126 - Concerning the Removal of Unreasonable Restrictions on the Ability of the Owner of an Electric Vehicle to Access Charging Facilities, by Sen. Lucia Guzman and Rep. Crisanta Duran. The bill requires landlords and common interest communities to allow unit owners to install electric vehicle charging stations on their own property.
  
• HB 13-1167 - Concerning the Collection of Business Information by the Secretary of State, by Reps. Brittany Pettersen and Crisanta Duran and Sen. Larry Crowder. The bill requires the Secretary of State to request certain demographic information from business owners, which will be available to the public on the Secretary of State website. The demographic information includes gender, race, veteran status, disability status, and NAICS code, and submission of the information is voluntary.
• HB 13-1222 - Concerning the Expansion of the Group of Family Members for whom Colorado Employees are Entitled to Take Leave from Work under the “Family and Medical Leave Act of 1993″, by Rep. Cherylin Peniston and Sen. Jessie Ulibarri. The bill allows employees to take leave under FMLA to care for their partners in civil unions.

On April 29, 2013, the governor signed six bills. These included the long appropriations bill, three Joint Budget Committee bills regarding the General Fund, and a bill to allow students who complete high school in Colorado to qualify for in-state tuition classification (SB 13-033 – Concerning In-State Classification at Institutions of Higher Education for Students who Complete High School in Colorado, by Sens. Angela Giron and Mike Johnston and Reps. Crisanta Duran and Angela Williams.) Governor Hickenlooper also signed the budget bill, SB 13-230, on April 29.

On April 26, 2013, Governor Hickenlooper signed 16 bills. Five of these are summarized here.

• HB 13-1025 - Concerning an Increase in the Amount of the Authorized Deductible for Workers’ Compensation Insurance Policies, by Rep. Spencer Swalm and Sen. Cheri Jahn. The bill increases the allowable deductible for employers’ workers’ compensation insurance policies.
  
• HB 13-1123 - Concerning the Right of a Person to Waive Confidentiality Requirements Protecting Personal Work Information Obtained by the Department of Labor and Employment for Unemployment Benefit Claims to Permit the Department to Forward Certain Information to Potential Employers, by Rep. Tony Exum and Sen. Jim Kerr. The bill allows the Department of Labor and Employment to offer job seekers the opportunity to waive confidentiality so that their personal information may be made available to bona fide employers seeking employees.
• HB 13-1258 - Concerning Local Government Involvement with Federal Immigration Issues, by Rep. Joe Salazar and Sens. Irene Aguilar and Morgan Carroll. The bill repeals C.R.S. Title 29, Article 29, which required local law enforcement officers to report any suspected illegal immigrants to federal immigration officials.
• SB 13-048 - Concerning the Use of Highway User Tax Fund Moneys Allocated to Local Governments for Multimodal Transportation Infrastructure, by Sen. Nancy Todd and Reps. Max Tyler and Jeanne Labuda. The bill allows counties and municipalities to spend moneys received from the Highway User Tax Fund on transit-related projects.
• SB 13-070 - Concerning the Purchase of Vehicles that Operate on Alternative Fuels for the State Motor Vehicle Fleet System, by Sen. Gail Schwartz and Reps. Ray Scott and Max Tyler. The bill requires the Department of Personnel and Administration to report on the number of alternative fuel vehicles purchased, the use of alternative fuel, and a plan to develop the infrastructure necessary to utilize more alternative fuel vehicles.

For a complete list of legislation signed into law by the governor in 2013, click here.

Paul and Melinda Muskrat’s son, J.M., is a developmentally disabled child. During the time period relevant to this lawsuit, J.M. was between five and ten years old but had the mental age of a two- or three-year-old. In addition to his mental disabilities, J.M. had impaired motor skills and a pattern of seizures. J.M. attended Deer Creek Elementary School in Edmond, Oklahoma, from 2002 to 2007.

Deer Creek Elementary had a special “timeout room” attached to J.M.’s classroom. The timeout room was small, although big enough for both a student and teacher to fit inside. J.M. was known to occasionally yell, throw, kick, hit, spit, throw tantrums, and otherwise exhibit disruptive behavior. As a result, teachers sometimes placed him in the timeout room. The Muskrats eventually became concerned about the use of the timeout room and told school officials beginning in 2004 that J.M. should not be placed there. The school’s principal nonetheless instructed at least one staff member to place J.M. in the timeout room if needed. The school’s logs show that J.M. was placed in timeout at least 30 times over the course of the 2004–05 and 2005–06 school years.

The Muskrats also claimed that J.M. suffered three instances of physical abuse at the hands of school staff.

Paul and Melinda Muskrat brought a civil rights action on behalf of their son against the school district and against certain school district employees. The Muskrats alleged that the defendants unconstitutionally subjected their son to timeouts and physical abuse.

The school district moved to dismiss, arguing that the Muskrats had not exhausted their claims through administrative procedures established by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400–1491o. The district court denied this motion, ruling that the Muskrats had no obligation to exhaust their claims. The case then proceeded to discovery and the defendants eventually moved for summary judgment, arguing that no constitutional violation occurred. The district court agreed and granted defendants’ motions.

IDEA Exhaustion Claim

The defendants moved to dismiss for lack of jurisdiction, arguing that the Muskrats had not exhausted their claims through procedures specified in the IDEA. The IDEA is a federal statute that imposes obligations on the states to provide certain benefits in exchange for federal funds. A state accepting such funding must ensure that all children with disabilities have available to them a free public education that emphasizes special education and related services designed to meet their unique needs. A child’s free appropriate public education must conform with his or her individualized education program (IEP). The IEP is a written statement that sets forth the child’s present performance level, goals and objectives, specific services that will enable the child to meet those goals, and evaluation criteria and procedures to determine whether the child has met the goals. If a parent objects to a school’s implementation of the IEP, the statute entitles the parent to an impartial due process hearing, which shall be conducted by the State educational agency or by the local educational agency. If the parent is unsatisfied with the outcome of the hearing, he or she may appeal such findings to the State educational agency.

The IDEA requires parents to work through these administrative procedures before suing the school under federal law.

Before addressing the district court’s disposition of the exhaustion issue, the Tenth Circuit paused to consider whether prior case law correctly treated IDEA exhaustion as a jurisdictional matter. Ultimately, however, for purposes of this case, IDEA exhaustion’s status as a jurisdictional prerequisite was not at issue.

Regarding the physical abuse allegations, the Court concluded that no authority holds that Congress meant to funnel such isolated incidents of common law torts into the IDEA exhaustion regime.

Moving on to the time-outs, the Tenth Circuit held that, in contrast to the physical abuse allegations, the Muskrats worked through administrative channels to obtain the relief they sought, namely, preventing J.M. from being put in a timeout room in the future. They made written and oral demands to school administrators not to place J.M. in timeout. The interested parties conferred and the IEP was modified as a result.

Accordingly, the Muskrats’ lawsuit does not fail for lack of exhaustion.

Fourteenth Amendment “Shocks the Conscience” Claim

The due process clause of the Fourteenth Amendment prohibits “executive abuse of power . . . which shocks the conscience.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). This standard applies to all school discipline cases, not just those based on corporal punishment. See, e.g., Harris v. Robinson, 273 F.3d 927 (10th Cir. 2001).

Viewing the record in a light most favorable to the plaintiffs, the Tenth Circuit concluded that the allegations of physical abuse did not rise to the level of a constitutional tort.

Regarding the time-outs, the various details, such as placing a chair in front of the door, show at most a careless or unwise excess of zeal rather than a brutal and inhumane abuse of official power.

Fourth Amendment Claim

Following summary judgment, the Muskrats filed a Rule 59(e) motion, arguing that the district court should have analyzed their § 1983 claim under a Fourth Amendment reasonableness standard. Finding no abuse of discretion, the Tenth Circuit held the district court did not err in denying the Muskrats’ motion, reasoning that the Muskrats had never before raised the Fourth Amendment as a possible source of evaluating § 1983 liability and could not do so for the first time after summary judgment.

AFFIRMED.

• SB 13-013 - Concerning Peace Officer Authority for Certain Employees of the United States Secret Service, by Sen. Steve King and Rep. Beth McCann. The bill allows certain agents of the U.S. Secret Service to have limited peace officer authority while working in Colorado.
• SB 13-018 - Concerning the Use of Consumer Credit Information by Employers, by Sen. Jessie Ulibarri and Rep. Randy Fischer. The bill restricts the use of employees’ and applicants’ consumer credit information by employers, and requires employers to allow employees or potential employees to explain any adverse information.
• SB 13-023 - Concerning an Increase in the Limitation on the Amount of Damages that may be Recovered by an Injured Party under the “Colorado Governmental Immunity Act,” by Sens. Bill Cadman and John Morse and Reps. Claire Levy and Bob Gardner. The bill increases the amount of damages available under the CGIA to reflect inflation adjustments.
• SB 13-042 - Concerning the Renewal of Distinguished Foreign Teaching Physician Licenses by a Person Ranked Lower than an Associate Professor, by Sen. John Morse and Rep. Mark Waller. The bill allows distinguished foreign physicians who are teaching at state medical schools to renew their licenses if they are at the level of assistant professor or higher.
• SB 13-058 - Concerning the Verification Requirement for Parking Privileges for Persons with a Permanent Disability, by Sen. Kevin Grantham and Rep. Lois Landgraf. The bill waives the requirement that persons with permanent disabilities must prove their disabilities every three years in order to renew their parking permits.
• SB 13-071 - Concerning Uniquely Identifying Student Numbers for Persons Enrolled in Adult Education Programs, by Sen. Evie Hudak and Rep. Rhonda Fields. The bill requires that the Educational Data Subcommittee must identify a method for applying a unique student identification number to individuals enrolled in adult education programs.
• SB 13-139 - Concerning Supplemental On-Line Education Services, by Sen. Ellen Roberts and Rep. Don Coram. The bill designates the authority to contract for online education services to the Board of Cooperative Educational Services.
• SB 13-184 - Concerning Repeal of the Criminal Penalties for Discrimination in Places of Public Accommodation, by Sens. Pat Steadman and Steve King and Rep. Paul Rosenthal. The bill repeals the criminal penalties for discrimination in public places but leaves in place the civil penalties.
• SB 13-192 - Concerning the Ability of Government Agencies to Extend the Time Permitted for Action Based on the Results of Fingerprint-Based Criminal History Record Checks, by Sen. Rollie Heath and Rep. Max Tyler. The bill extends the amount of time government agencies may have before acting on the results of criminal background checks.
• HB 13-1039 - Concerning Additional Sources of Moneys to be Credited to the Legislative Department Cash Fund, by Rep. Lois Court and Sen. Nancy Todd. The bill allows certain moneys collected to be allocated to the legislative department cash fund.
• HB 13-1208 - Concerning Creative Districts and Authorizing the Creative Industries Division of the Colorado Office of Economic Development to Offer Incentives in the Form of Need-Based Funding for Infrastructure Development in State-Certified Creative Districts and to Provide Such Funding from any Moneys Appropriated to the Creative Industries Cash Fund for that Purpose, by Rep. Crisanta Duran and Sen. Linda Newell. The bill allows the Creative Industries Division in the Office of Economic Development to spend money to develop infrastructure for creative districts.
• HB 13-1237 - Concerning the Voluntary Contribution Benefiting the Special Olympics Colorado Fund that Appears on the State Individual Income Tax Returns, by Reps. Dave Young and John Buckner and Sen. Mary Hodge. The bill reestablishes the Special Olympics tax return check-off, since it was not renewed in 2012 after its 2011 sunset.

For the complete list of Governor Hickenlooper’s 2013 legislative decisions, click here.

The plaintiffs are high school students from Roswell, New Mexico, who belong to a religious group called “Relentless” (“Plaintiffs”). On January 29, 2010, the Relentless students planned to distribute 2,500 small rubber dolls at two high schools, Roswell High School and Goddard High School. Each two-inch doll was designed to be a realistic representation of a human fetus. The Relentless students did not seek permission before distributing these items.

At Goddard High, Relentless students began distributing the dolls to every student entering the school that morning. When the Assistant Principal discovered that the students did not have prior approval, he stopped the distribution and confiscated the dolls. Dolls were also confiscated at Roswell High. Both schools experienced doll-related disruptions that day.

When these distributions began, Roswell District had two policies concerning distribution of non-school related materials on campus. Policy 7110 required advance permission from the District before distribution of promotional items or advertisements on campus. A separate unwritten policy required students to obtain permission before on-campus distribution of non-school-sponsored literature. This policy was later formalized as written Policy 5195.

Plaintiffs sued Roswell Independent School District and Superintendent Michael Gottlieb in his official capacity (collectively “the District”) seeking declaratory and injunctive relief and alleged three counts. Count I included two First Amendment speech claims. First, Plaintiffs brought a facial challenge against the District’s preapproval policies for non-school-sponsored material, alleging the policies were unconstitutional prior restraints and were unconstitutionally vague. Second, they challenged the policies as applied to Plaintiffs, claiming that the District’s refusal to allow them to distribute the fetus dolls violated their free speech rights. Count II alleged violation of Plaintiffs’ free exercise rights under a so-called hybrid claim theory. Count III alleged that the District discriminated against Plaintiffs in violation of the Fourteenth Amendment’s Equal Protection Clause. A magistrate judge granted summary judgment for the District on all claims, and Plaintiffs appealed on Counts I and III.

Count I: Two First Amendment Speech Claims

The Court noted that two important questions were not at issue. First, this case did not turn on whether the content of Plaintiffs’ message warranted First Amendment protection—there was no question that it did. The record showed Plaintiffs meant to convey a religious and political message when they distributed the dolls, and the Constitution requires they be permitted to express these views at school in some form. Second, the parties did not contest that the District was allowed to confiscate already distributed rubber dolls from any students who threw them, used them to harm school property, or displayed them as props for lewd or obscene expressions of their own.

What was contested was whether the District violated Plaintiffs’ free speech rights when it stopped their on-campus distribution of the dolls. The answer depends on whether school officials reasonably forecast that this particular form of expression would create a substantial disruption to school discipline.

First, Plaintiffs brought a facial challenge against the District’s preapproval policies for non-school-sponsored material, alleging the policies are unconstitutional prior restraints and were unconstitutionally vague.

Plaintiffs’ facial challenge to the school policy failed. Generally, a “prior restraint” restricts speech in advance on the basis of content and carries a presumption of unconstitutionality. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83 (1992). The policy was not unconstitutional under the prior restraint doctrine because it constrained official discretion and contained adequate procedural safeguards—and because it applied to the school environment where greater deference is given to school officials. It was not void for vagueness because students of ordinary intelligence could understand its meaning and it neither authorized nor encouraged arbitrary or discriminatory enforcement.

Second, Plaintiffs challenged the policies as applied to Plaintiffs, claiming that the District’s refusal to allow them to distribute the dolls violated their free speech rights.

Under the standards developed in Tinker v. Des Moines, 393 U.S. 503 (1969), and Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), The Tenth Circuit held that Plaintiffs’ free speech challenges failed because school officials reasonably forecast that the distribution would cause substantial disruption and because the distribution did cause substantial disruption. Plaintiffs’ distribution conveyed a political and religious message and would likely merit First Amendment protection outside the school context. Inside the school walls, however, the Court had to consider whether the expression was, or was reasonably forecast to be, disruptive. The record was replete with reports of doll-related disruptions throughout the day on January 29, 2010, including substantial disruptions to classroom instruction, damage to school property, and risks to student safety. In short, there was ample undisputed evidence that the District had permissible reasons for stopping the distribution. Plaintiffs’ free speech rights were therefore not violated.

Count III: Discrimination Claim

Plaintiffs alleged that the District discriminated against Plaintiffs in violation of the Fourteenth Amendment’s Equal Protection Clause. Plaintiffs argued they were treated differently because non-Relentless students were permitted to distribute Valentine’s Day cards, chocolate, and stuffed animals on the same day that they were prevented from distributing the rubber fetuses.

The Equal Protection Clause provides that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.A. To prevail on an equal protection claim, a plaintiff must show that she was treated differently from others who were similarly situated. Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 1998).

Applying the rational basis test, the Tenth Circuit held that Plaintiffs’ free exercise and equal protection claims failed because the decision to stop the distribution was not based on religion, and Plaintiffs failed to show they were treated differently from similarly situated students.

The Tenth Circuit noted that the public school setting was important to its analysis.

AFFIRMED.

At the Capitol

• HB 13-1138. Concerning Benefit Corporations. By Rep. Lee and Sen. Kefalas. On Friday, March 9, the House Appropriations moved the bill to the full House for consideration on 2nd Reading. The bill will be on the calendar for 2nd Reading sometime during the week of March 11.
• On March 8, Governor Hickenlooper signed into law, HB 13-1035. Concerning an increase in the number of judges in certain judicial districts, and, in connection therewith, making an appropriation. The bill creates two new district court judgeships; one each in the 5th and 9th Judicial Districts. Although the bill was signed on March 8, the act doesn’t take effect until July 1.
• Almost 10 years in the making, SB 13-33. Concerning in-state classification at institutions of higher education for students who complete high school in Colorado was given final approval by the House of Representatives on Friday, March 8. The bill requires an institution of higher education in Colorado to classify a student as an in-state student for tuition purposes if the student: 1) attends a public or private high school in Colorado for least 3 years immediately preceding graduation or completion of a general equivalency diploma (GED) in Colorado; and 2) is admitted to a Colorado institution or attends an institution under a reciprocity agreement
• Civil Unions watch: SB 13-11. Concerning authorization of civil unions, and, in connection therewith, making an appropriation. By Sen. Steadman and Rep. Ferrandino. On March 6, the Finance Committee approved the bill and referred it to the Appropriations Committee. On March 8, the Appropriations Committee adopted the bill and sent it to the full House for consideration on 2nd Reading. Why all the attention to SB 11? Once approved, the vast majority of the bill goes into effect on May 1. View the current bill version online.

Also available in the e-Legislative Report are summaries of 20 bills of interest — 10 from each house. Click here for the full list of bill summaries, or stay tuned to CBA-CLE Legal Connection.

Choice Scholarship Program—Standing—Public School Finance Act of 1994—Colorado Constitution.

In 2011, the Douglas County Board of Education (County Board) adopted the Choice Scholarship Program (CSP). Pursuant to the CSP, parents of eligible elementary school, middle school, and high school students residing in the Douglas County School District (District) may choose to have their children attend certain private schools, including some with religious affiliation. The District would pay parents of participating students “scholarships” covering some of the cost of tuition at those schools, and the parents would then remit the scholarship money to the schools.

Plaintiffs are nonprofit organizations, Douglas County taxpayers, District students, and parents of District students. They filed suit to enjoin implementation of the CSP, claiming that it violates the Public School Finance Act of 1994, CRS §§ 22-54-101 to -135 (Act), and various provisions of the Colorado Constitution.

Plaintiffs claimed that the CSP violated the Act because the District will impermissibly use state money distributed by the Colorado Department of Education to pay for private school tuition at private schools. The Court of Appeals did not reach the merit on this claim, however, because it found that plaintiffs did not have standing to bring a private cause of action seeking enforcement of the Act.

Plaintiffs further contended that the court erred in rejecting their claim alleging a violation of article IX, § 2, of the Colorado Constitution, which requires the General Assembly to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.” Article IX, § 2 plainly is not violated where a local school district decides to provide educational opportunities in addition to the free system the Constitution requires. It also is not violated merely because some students’ parents may choose to have their children forego the available opportunity to attend a school within the system the Constitution requires. Therefore, plaintiffs failed to prove beyond a reasonable doubt that the CSP violates the Colorado Constitution.

Plaintiffs also contended that the court erred in rejecting their claim alleging a violation of article IX, § 3, of the Colorado Constitution because the public school fund is used for private schools. There was no record support for this argument. Therefore, the Court assumed that the CSP was funded out of the 95% of total per-pupil revenue that does not come from the public school fund.

Plaintiffs further argued that the CSP violated article IX, § 15, of the Colorado Constitution, and that the district court erred in ruling to the contrary. However, article IX, § 15, does not apply to the CSP because the directors of the boards of education of local school districts have control of instruction in the public schools of their respective districts.

Plaintiffs also argued that the CSP violated article II, § 4; article V, § 34; and article IX, §§ 7 and 8, of the Colorado Constitution. The CSP is neutral toward religion generally and toward religion-affiliated schools specifically. The CSP is intended to benefit students and their parents, and any benefit to the participating schools is incidental. Further, the CSP does not compel anyone to do anything, much less attend religious services. To the extent students would attend a particular private school or religious services at that school, they would do so as a result of parents’ voluntary choices. Therefore, the CSP does not violate the Colorado Constitution.

Finally, plaintiffs argued that the CSP violated article V, § 34, of the Colorado Constitution by providing funds to private schools and religious organizations. The General Assembly appropriates state money for elementary and secondary education to the Colorado Department of Education, which in turn distributes it to local school districts in the form of total per pupil revenue. At that point, ownership of the funds passes to the local school districts. The District’s expenditure of funds under the CSP, therefore, does not constitute an appropriation by the General Assembly. As a result, the CSP does not violate article V, § 34.

Summary and full case available here.

The bill continues the interagency farm-to-school coordination task force indefinitely. The composition and responsibilities of the interagency farm-to-school coordination task force is updated. On Feb. 21, the Senate gave approved the bill on 3rd Reading.

Since this summary, the bill was introduced in the House and assigned to the Agriculture, Livestock, & Natural Resources Committee.

The bill requires an institution of higher education (institution) in Colorado to classify a student as an in-state student for tuition purposes if the student:

• Attends a public or private high school in Colorado for at least three years immediately preceding graduation or completion of a general equivalency diploma (GED) in Colorado; and
• Is admitted to a Colorado institution or attends an institution under a reciprocity agreement.

In addition to the above requirements, a student who does not have lawful immigration status must submit an affidavit stating that the student has applied for lawful presence or will apply as soon as he or she is able to do so. These students shall not be counted as resident students for any other purpose, but are eligible for the college opportunity fund stipend pursuant to the provisions of that program, and may be eligible for institutional or other financial aid.

The bill creates an exception to the requirement of admission to an institution within 12 months after graduating or completing a GED for certain students who either graduated or completed a GED prior to a certain date and who have been continuously present in Colorado for a specified period of time prior to enrolling in an institution.

The bill exempts persons receiving educational services or benefits from institutions of higher education from providing any required documentation of lawful presence in the U.S. On Jan. 24, the Education Committee approved and the unamended bill to the Appropriations Committee.

The Kansas Constitution requires the Kansas legislature to make suitable provision for finance of the educational interests of the state. In 2005, the Kansas Supreme Court determined the then-current school finance system (the Act) violated the state constitution because it failed to make suitable provisions for funding public schools. Among the Act’s constitutional shortcomings were an overall funding of public education and a wealth-based disparity in public education funding based on difference in assessed property values from district to district. At the same time, the Kansas Supreme Court upheld the Act against an equal protection challenge, finding the Act did not violate either the Kansas or United States constitutions on equal protection grounds.

The Act in part authorized districts to adopt a “Local Option Budget” (LOB), which permitted a district to raise extra money by levying additional property taxes beyond the minimum. The LOB was capped at 31% of the district’s State Financial Aid entitlement. Plaintiffs, students and parents of students, filed this action claiming the LOB cap violated their federal Equal Protection and Due Process rights by effectively reducing their educational services.

The district court dismissed the case for lack of standing, concluding the LOB cap was not severable from the rest of the Act. Therefore, a finding that the LOB cap was unconstitutional would result in the invalidation of the entire Act, leaving the school board unable to levy any taxes at all. In other words, a favorable decision striking the cap could not redress plaintiffs’ alleged injury. This appeal followed.

The three requirements of standing are: injury-in-fact, causation, and redressability. The Tenth Circuit found that Appellants carried their burden to establish the three requirements of Article III standing. The Court stated that Appellants’ standing did not depend on their certain ability to raise funding from within the district. Instead, Appellants had standing because they alleged a violation of their right to equal protection that was fairly traceable to the challenged statute, and that would be redressed by a favorable decision on the merits, even if such a decision resulted in the wholesale invalidation of the Act.

Accordingly, the Tenth Circuit REVERSED and REMANDED for consideration on the merits.

Unlawful Termination Violating Free Speech Rights—42 USC § 1983—Absolute and Qualified Immunity—Quasi-Judicial Proceedings—Equitable Relief.

The Supreme Court affirmed the court of appeals and the trial court, both of which held that Professor Ward Churchill was not entitled to any of the remedies he sought. Churchill brought a claim under 42 USC § 1983, claiming that the University of Colorado at Boulder (CU) Board of Regents (Regents) opened an investigation into his academic integrity in retaliation for the publication of a controversial essay, and that the investigation and resulting termination of his employment violated his free speech rights.

The proceedings against Churchill took more than two years and included several opportunities for Churchill to present witnesses, cross-examine adverse witnesses, and argue his positions. The Court held that the Regents’ termination of Churchill’s employment was a quasi-judicial proceeding, and that the Regents are entitled to absolute immunity.

The Court also affirmed the trial court’s ruling denying Churchill request to be reinstated and to receive front pay. The trial court accepted as fact that the Regents’ investigation found that Churchill had plagiarized his academic writings, fabricated evidence, and violated the school’s academic standards. The trial court ruled that reinstating Churchill would not be appropriate because the relationship between Churchill and CU was irreparably damaged. Reinstating Churchill, the trial court ruled, would harm CU’s ability to enforce its standards of academic integrity and could impair CU’s ability to attract good students and faculty. The trial court’s rulings and findings did not constitute an abuse of its discretion and the rulings were affirmed.

Summary and full case available here.