Legislative Changes Put Schools in a Lose-Lose Situation

While most of my job involves protecting public school employees from new or overzealous applications of state law, every once in a while I get a reminder that districts themselves can be placed in impossible situations by changed laws.  The current hostility to public education has pushed some legislatures to create ever more restrictive and burdensome school laws and, unfortunately, they aren’t always sensitive to the consequences of their actions.  A recent case from Ohio demonstrates just such a situation where a school district was faced with the decision to follow either state law or federal law with no way to follow both.  See Waldon v. Cincinnati Public Schools, No. 1:12-CV-00677 (S.D. Ohio, April 24, 2013).

Hat tip to the Employer Law Report for pointing this case out.

Hit the jump for all the darned-if-you-do-darned-if-you-don’t details…

In Waldon, the Ohio legislature passed a law in 2007 that amended the criminal background check procedure for public school employees.  The amended law expanded the checks from just individuals responsible for the care, custody, or control of students to all employees of the school.  Most importantly, the law required that individuals who had violated any of an extensive list of laws would have to be immediately terminated regardless of the amount of time that had passed since the offense or how little the offense related to their current employment.  When the Cincinnati Public Schools ran the mandated background check, nine of the ten employees it was mandated by state law to terminate were African-American.  Two of these individuals, one who had been found guilty of assault in 1977 and the other who had acted as a go-between in the purchase of $5.00 of marijuana in 1983, brought suit alleging race discrimination.  The school district moved to dismiss the suit claiming that it simply followed state law in terminating the individuals.

The district court began its analysis by noting the two distinct types of employment discrimination claims: disparate treatment and disparate impact.  Unlike a claim for disparate treatment, an allegation of disparate impact “results from facially neutral employment practices that have a disproportionately negative effect on certain protected groups and which cannot be justified by business necessity.”  The district court held that the plaintiffs had sufficiently pled a claim of disparate impact.  The termination requirement in this situation clearly disproportionately affected African-Americans.  Additionally, the court noted, citing precedent from several district courts and appellate circuits, that the district could not argue “business necessity” because the termination requirement was not related to technical aptitude or merit but merely served as a complete bar to employment.  Therefore, the court held that plaintiffs had stated a sufficient claim that even if the district had been following the letter of the state law, that did not protect them from the resulting violation of federal law, and denied the motion to dismiss.

Unfortunately, situations like those in Waldon are not limited to Ohio.  There have likely been situations in every state, including Missouri, where an overzealous legislature created mandates that were impossible to follow or would require violating other rights or laws.  Now that the legislatives session for Missouri has ended we get a chance to see what changes will be mandated for the upcoming year for public school employees and brace for any potential consequences.


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Filed under Discrimination, Legislation

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