Published Online: March 26, 1997

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A confidential departure agreement between a Colorado school board and its superintendent violates public policy and is unenforceable, a state appeals court has ruled.

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The ruling comes in an unusual case in which the former superintendent of the 16,000-student St. Vrain Valley district sued the school board after details of the pact were leaked.

The superintendent, Fred Pierce, resigned abruptly in August 1994, citing only "personal reasons." But a few weeks after the resignation, The Denver Post reported that the superintendent had resigned under pressure and quoted anonymous sources who said there were allegations of sexual harassment against him.

The district paid Mr. Pierce $159,000 under the agreement, the newspaper reported.

Three women who worked in the district's offices later filed a sexual-harassment lawsuit against Mr. Pierce and the district. The district settled its portion of the suit with the three women for $71,000.

Mr. Pierce sued the district and board members, alleging that they had violated the terms of the departure agreement. The pact said details of the board's investigation into "certain allegations made by certain persons" would remain confidential. It also barred the two sides from making any "disparaging public comments or remarks."

A state trial judge ruled for the district and the board members, concluding that the confidential agreement violated state constitutional and statutory guarantees that all public records remain open.

In a March 6 ruling in Pierce v. St. Vrain Valley School District, a three-judge panel of the Colorado Court of Appeals unanimously agreed.

The court said the public is deprived of the ability to judge the performance of public officials if information about such agreements and the underlying personnel disputes are kept confidential.

The court said that state courts in at least three other states that have confronted the issue of confidential departure agreements for school superintendents have also ruled that such deals violate public policy.

While such agreements encourage the settlement of disputes, the court said, "that interest must give way in circumstances such as this in which a governmental entity attempts to conceal from public knowledge the circumstances surrounding the departure of a public official."

Mr. Pierce will appeal the ruling in the state supreme court, according to his lawyer, Kristen L. Mix. She said the former superintendent found it incredible that the board signed the agreement then "turned around and argued that it was void."

Lunch Period Considered 'Noninstructional Time'

A school lunch period can be "noninstructional time" under the federal Equal Access Act, a federal appeals court has ruled.

The court reversed a federal district judge who had ruled that officials at University City High School in San Diego could deny a Christian club the opportunity to meet during lunch. The 1984 federal law requires public schools receiving federal aid to treat religious clubs the same as other noncurriculum-related student clubs.

A panel of the U.S. Court of Appeals for the 9th Circuit ruled 2-1 that the school was wrong to disallow the religious club in 1992 because it allowed other noncurriculum clubs to meet during the lunch hour. One significant fact at University High was that all students had lunch at the same time, and no instruction was held during the lunch period. The Equal Access Act states that religious clubs must be allowed to meet during "noninstructional time."

The panel majority said in its Feb. 6 opinion in Ceniceros v. Board of Trustees of the San Diego Unified School District that districts were free to adopt a neutral ban on all noncurriculum club meetings during lunch periods, but they could not discriminate against religious clubs.

The Clinton administration had sided with the Christian club in a friend-of-the-court brief filed with the appeals court.

New Orleans Court Takes Narrow View

The U.S. Court of Appeals for the 5th Circuit, based in New Orleans, is consistently taking the most narrow view of all the federal appeals courts on the issue of school district liability for sexual harassment of students.

In a ruling last year, for example, the court held that harassment of students by other students should not be analyzed using the workplace-discrimination framework of Title VII of the Civil Rights Act of 1964. Several other federal courts, as well as the U.S. Department of Education's office for civil rights, take a different view that makes it easier for students to sue over peer sexual harassment. ("ED Issues Guidance on Sex Harassment of Students," March 19, 1997.)

In a ruling last month, the 5th Circuit court also set a narrow standard for district liability in teacher-student sexual-harassment cases. In Rosa H. v. San Elizario Independent School District, a three-judge panel of the court unanimously threw out a $300,000 jury verdict against a district in western Texas.

The case stemmed from a 1992 incident in which a karate instructor at San Elizario High School had a sexual relationship with a 15-year-old girl, identified as Deborah H. The trial testimony was inconclusive about whether school officials knew about the relationship. But the federal trial judge instructed the jury that the district could be held liable for the actions of its employees if it acted negligently.

The appeals court overturned the $300,000 jury award. The court held that Congress, in passing Title IX of the Education Amendments of 1972, did not intend to hold districts to "sweeping liability" for monetary damages "when the district itself engages in no intentional discrimination."

"Title IX requires a showing of actual, intentional discrimination on the part of the school district," said the Feb. 17 opinion by U.S. Circuit Judge Patrick E. Higginbotham.

--MARK WALSH mwalsh@epe.org

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