Recent Cases of Interest to California Teachers

While there were plenty of legal actions undertaken during the 2013-2014 school year, some court cases in California and in the 9th Circuit stand out. Here are our reports from the major appellate cases--and a few others--from 2013-2014:

DeYoung v. Commission on Professional CompetenceFailure to produce written charges against teacher was not a substantive error
A tenured teacher who was being terminated for, among other things, allegedly striking a student and calling students “stupid,” was orally told of the allegations, received a letter from the District regarding the charges, and he was placed on administrative leave. The District met with the teacher in a “Skelly” meeting and then dismissed him and then served on him a written accusation proposing dismissal. The teacher argued he should have received written charges prior to the District Board voting, not after the vote to dismiss. The Court of Appeal affirmed the trial court determination that whatever error occurred was harmless, that the charges were clear from the start, and the teacher received a full evidentiary hearing. (California Court of Appeal—2nd District, 7/30/14)

Hector F. v. El Centro Elementary School DistrictParent (as taxpayer and citizen) has standing to sue after student left school to enforce antiharassment laws
An elementary special ed student who spoke English only as a second language was the victim of abuse from other kids, according the child’s father. After complaining to school officials, the father alleges school officials did not intervene and provide any protection for Brian, but instead suggested Brian change classrooms. The trial court dismissed the charges because the student no longer attends the elementary school. The appeal court reversed this ruling: “As a citizen and taxpayer Hector has standing to seek enforcement of laws in which there is an identified public as well as private interest. The statutory provisions asserted by Hector articulate a well identified public interest in maintaining a system of taxpayer funded public education which is free of the destructive influence of discrimination, harassment and bullying.” The father’s “attempt to enforce the antidiscrimination and antiharassment statutes adopted by the Legislature falls squarely within the public interest exception to the rule which otherwise requires a beneficial interest in mandate actions.”

LAUSD v. Superior Court—Court of Appeal agrees with LAUSD to keep teacher data private
Data regarding student performance, disaggregated by teacher, may be kept away from the public, pursuant to the Public Records Act.
Read the California Appellate Report, 7/23/14:
The decision in LAUSD v. Superior Court can be found at:

Harris v. Quinn—Supreme Court Decision Signals Trouble for Teachers; Unions Down the Road
In the 5-4 decision, the high court ruled that eight Illinois home health-care workers cannot be required to contribute union bargaining fees.
Read the CTA blog [7/1/14] on this case:

Vergara v. California—Trial Court Rules that Tenure and Seniority Laws Violate the Equal Protection Guarantee for Poor and Minority Students
This controversial case (see more at my California Teacher Law Blog:, will certainly be appealed by either the State or the CTA (or both). The judge ruled, after a two-month trial, that five statutes providing teachers with tenure very quickly and make it extremely difficult to fire ineffective teachers, protect the more experienced teachers from economic-based layoffs at the expense of newly hired teachers, disproportionately affect poor and minority students and thus violate the state’s equal protection clause and the guarantee of an “equal education” promised in Brown v. Board of Education (1954), the Serrano v. Priest cases of the 1970s, and the Butt v. California (1992) case.

Dariano v. Morgan Hill Unified School District—School’s Ban on U.S. Flag Shirts on Cinco de Mayo Upheld by 9th Circuit
The 9th Circuit upheld the school’s decision to force the students who were wearing the U.S. flag shirts to stop doing so as there a real risk of violence on the school which was celebrating Cinco de Mayo.
The decision is at:
Much has been written about this case elsewhere. See:

Heckler's Vetoes in High School [Jurist, 3/14/14]: Ashutosh Bhagwat argues the decision in Dariano may have constituted a heckler's veto over the rights of free speech
The JURIST report (2/28/14) on this case is here:
Legal blogger Eugene Volokh, at the “Volokh Conspiracy,” has this comment (2/27/14):
The NSBA “Legal Clips” page on the case and decision can be found at:
Attached to the original complaint filed in 2010, you can find exhibits with pictures of the shirts with the American flag that are in question:

LAUSD v. Superior Court (Los Angeles Times Real party in Interest)—District’s Teacher Ratings Survive Public Records Act challenge by LA Times
The 2nd District Court of Appeal overturned the trial court and ruled that the public has no right to know the names of Los Angeles Unified School District teachers in connection with their job performance ratings. The Los Angeles Times had sued to obtain this information under the Public Records Act, asserting the public interest of parents and others. The Court ruled, however, that the confidentiality of the teachers served a stronger public interest.
Read the California Appellate Report comment at:
LAUSD v. Superior Court can be found at:

Nathan G. v. Clovis USD—Appeal court upholds students’ involuntary transfer to continuation school
When a school attempts to transfer a student involuntarily to a continuation school (Ed.C. sec. 48432.5), a hearing should be held (if requested), but the school is not required to exhaust “all other mans of correction” before a student can be transferred. While the right to an education is a “fundamental right” (and thus require an independent review by the Court), a transfer as in this case to another school does not deny the student a right to attend school. This means the Court has only to find “substantial evidence” that the school discipline of the student is entitled to deference by the Court.

Frudden v. Pilling—Public School can’t require Students to Display a Motto on their Uniforms
Public elementary school students had to wear a uniform that displayed the school motto, “Tomorrow’s Leaders.” This, the Court said, was “compelled speech” and subject to strict scrutiny review. The lower court had not exercised this level of review, and the case was sent back to the lower court. Further, the school allowed “nationally recognized youth organizations such as Boy Scouts or Girl Scouts on regular meeting days” to wear their non-school uniforms. This is a “content-based” exemption might also violate the First Amendment, and the lower court did not examine this, the lower court ruling was overturned.
The 9th Circuit decision is at:

Read Public school can't require students to display a motto on their uniforms [Volokh Conspiracy / Trial Insider, 2/14/14]
You can read the original District Court ruling:
Read Professor Volokh (the advocate for the students in this case) essay: “Can Public Elementary School Require Students to Wear Shirts With Mottoes?”:
You can view the YouTuber video of the oral argument in the 9th Circuit:

Demers v. Austin—9th Circuit holds Garcetti rule on public employee speech does not apply to teaching and academic writing
The 9th Circuit ruled that not all things that a public school employee writes and distributes in connection with his or her official duties are without 1st Amendment protections. Demers, a faculty member at Washington State University, had distributed a document for change to high-level administrators and media and others. He suffered negative employment actions, which he blamed on his distribution of the documents, and he alleged illegal retaliation that violated the 1st Amendment. Garcetti v. Ceballos (2006) had held that “when public employees make statement pursuant to their official duties, the employees are not speaking as citizens for 1st Amendment purposes, and the Constitution does not insulate their communication from employer discipline.” However, the 9th Circuit ruled in Demers that the Garcetti rule does not apply to “speech related to scholarship or teaching,” but rather the Pickering v. Board of Education (1968) test should apply. There, if the teacher can demonstrate that his or her speech was about a “matter of public concern,” then it is protected if the teacher’s interest “in commenting outweighs the interest of the State, as an employer, in promoting the efficiency of the [school].”

Read the “Verdict” piece, “Precisely How Much Academic Freedom Should (Does) the 1st Amendment Afford to Professors and Teachers at Public Schools?” by Professors Vikram Amar and Alan Brownstein at:

Wynar v. Douglas County School District—9th Circuit Upholds School Discipline Against Student for Sending Messages from Home to Friends
Landon Wynar, a high school sophomore, was suspended after he made sent increasingly violent and threatening instant messages from his home to his school friends. The 9th Circuit said that, when faced with an identifiable threat of school violence, schools could take disciplinary action in response to off-campus speech under the Tinker v. Des Moines (1969) rule that “schools may prohibit speech that ‘might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities’ or that collides ‘with the rights of other students to be secure and to be let alone.’
The court cited LaVine v. Blaine School District (2001) in which the schools temporary expulsion was upheld because of a poem written at home about a school shooting and suicide that the student showed to his English teacher.

Read Julie Hilden’s “Verdict” piece, “When is a Public School Student’s Online Speech About School Violence Cause for Concern?” at:

E.M. v. Pajaro Valley Unified School District—District Action Denying Special Education to Student Upheld by 9th Circuit
The 9th Circuit agreed the District had acted reasonably in determining that a student “did not qualify for special education services under the “specific learning disability” category because he lacked the required severe discrepancy between his intellectual ability and his achievement. Further, the student failed to show that the school district acted unreasonably in not considering him for benefits under the “other health impairment” category in 2005.
The decision in E.M. v. Pajaro Valley Unified School Dist. can be found at:

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