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Published in Print: October 8, 2003, as Law Update

Law Update

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Ariz. Districts Ruled to Lack State Immunity in Federal Suits

In a case brought by a school employee who says she was fired after refusing to affix a flag to her wheelchair, a federal appeals court has ruled that Arizona school districts are not immune from lawsuits by individuals seeking damages under federal disability-rights laws.

Shelley Savage, who was partially paralyzed in a car accident, was an aide in a high school computer lab in 1999 when school administrators asked her to make herself more visible by attaching to her wheelchair a flagpole akin to those on children’s bicycles. She refused.

“It’s humiliating having somebody ask you to do something like that,”

Ms. Savage said in an interview last week. “It’s like branding me with a scarlet letter.” Ms. Savage sued the Phoenix-area Glendale Union High School District, claiming that the request to use a flag violated the Americans with Disabilities Act and the Rehabilitation Act of 1973. The 14,000-student district contends that she left her job voluntarily and only objected to the flagpole request after other concerns arose about her job performance, said Daniel Maldonado, the district’s lawyer.

The school system sought to have the case thrown out on jurisdictional grounds, arguing that school districts in Arizona are arms of the state and thus immune from suits for damages under the 11th Amendment to the U.S. Constitution. A U.S. District Court judge in Phoenix disagreed, and last month a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, unanimously upheld his ruling.

“Like most states, Arizona has chosen to vest control of school districts in local school boards,” wrote U.S. Circuit Judge Sidney R. Thomas in the Sept. 10 opinion. Given that balance of power, he continued, no Arizona school district can “cloak itself in the immunities afforded by the state.”

The decision may settle the question of where Arizona districts stand under the 11th Amendment, which shields states from lawsuits for damages unless they consent to be sued. A legal question not yet definitively settled for all 50 states is whether local governmental bodies, including school districts, enjoy the same immunity. The answer depends on such factors as whether judgments against a district are paid out of the state treasury.

In past decisions, the 9th Circuit court has ruled that California districts do have 11th Amendment immunity, but that districts in Nevada do not.

“Our argument was that we were a whole lot more like California than Nevada,” said Christopher Thomas, the legal counsel for the Arizona School Boards Association, which supports the Glendale district.

But the 9th Circuit panel rejected that view after considering five factors, chief of which was the fact that Arizona would not have to foot the bill for damages if the school district lost in court. Late last month, the school district requested a rehearing by a larger panel of the 9th Circuit court.


Whistleblower Case

Officials in a small rural school district in western Utah have lost their appeal of a case involving a former employee who claimed that she had suffered retaliation after voicing concerns about “polygamist influence” and alleged sexual misconduct with students by teachers at the local high school.

A panel of the U.S. Court of Appeals for the 10th Circuit, in Denver, ruled 2- 1 on Sept. 10 to reject an appeal by the Tintic district and Patricia Hunter- Rowse, who served as its superintendent until last summer. Debra Youren, a former teacher’s aide and bus driver in the 250-student district, had brought the federal lawsuit five years ago.

Ms. Youren had claimed violations of her federal constitutional rights to due process of law and free speech. She also had sought damages under a Utah law aimed at protecting whistleblowers.

Among her claims was that before being fired, she was subjected to a psychological examination and other forms of intimidation after complaining about alleged misconduct of other staff members. After a trial, a jury awarded her some $218,000 in compensatory damages, with $120,500 to come from the district and $97,500 from Ms. Hunter-Rowse.

According to court documents, Ms. Youren claimed that “a teacher was favoring his polygamist family members and dating one of his students,” and “that polygamist influence at the school had resulted in the adoption of discriminatory practices.” Ms. Youren further alleged that polygamist employees were given preferential treatment because their superiors were trying to help them earn more money to support their large families.

She also contended that “another teacher dated and attempted to initiate a sexual relationship with Ms. Youren’s daughter and with several male students,” and that the school principal “condoned student absences and indeed encouraged students to work at his ranch rather than attending school,” according to the opinion. The principal was not found liable for damages at trial, and Ms. Youren’s lawyer said that no criminal charges were filed in connection with her allegations.

In its appeal, the district contended that Ms. Youren had made procedural missteps in her suit and that the federal district judge who handled the case had violated a rule against “double recovery” of damages by plaintiffs by allowing the jury to assess damages against both the district and its former schools chief.

The 10th Circuit panel rejected the school district’s claims and agreed with Ms. Youren that the jury should have been allowed to consider a punitive award against the superintendent. “Especially in the context of a public school and its role in educating and caring for the nation’s youth, it is extremely important to protect those who shine a light on unsavory and illegal practices, risking their careers in the knowledge that their colleagues will be anything but grateful for those efforts,” wrote U.S. Circuit Judge Robert H. Henry for the majority.

The panel ordered the case sent back to the district court for a trial on whether such damages should be awarded. That move is on hold, however, because the state attorney general’s office, which is representing the district and Ms. Hunter-Rowse, asked the appeals court late last month to rehear the case.

—Caroline W. Hendrie

Vol. 23, Issue 6, Page 12

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