Courtroom Weekly: Schools in court over funding, liabilities and transgender policies

June 27, 2013

by: the State Court Staff

Schools, milk, bottle rockets and a man who wants to die

Courtroom Weekly The latest and greatest in court cases around the nation In this issue... Featured case News from West Virginia News from Wisconsin News from New Hampshire News from Iowa News from Oregon

Featured case Transgender child wins right to use girl's bathroom   Court: Colorado Supreme Court In a ruling that is the first of its kind, the Colorado Supreme Court held that a school district discriminated against a biological boy who identifies as a girl by forbidding her from using the girl's restroom. Coy Mathis is just six years old. She wears bright pink clothes and plays with dolls. She appears to the world as a girl. Yet, she was born the only boy in Kathryn and Jeremy Mathis' set of triplets. From as early as 5 months old, Coy began exhibiting "girl" behavior, favoring the color pink, refusing to play with "boy" toys, etc. She also refused to leave the house in "boy" clothes. Coy was later diagnosed with "gender identity disorder." The Mathis' said that once they accepted Coy's gender as a female, she blossomed. Initially, Eagleside Elementary in Fountain, Colorado--near Colorado Springs--accepted Coy's identity as a female. However, the Mathis' were told in late 2012 that, when the children returned from winter break, Coy would have to use the bathroom in the teacher's lounge or the nurse's office. Disturbed by this and not wanting Coy to be stigmatized by such a decision, the family reached out to the Transgender Legal Defense & Education Fund, which agreed to take Coy's case. In February 2013, the family filed a complaint of discrimination and home-schooled Coy for the rest of the year. The June 24, 2013 ruling was the end of the legal battle. Michael Silverman, the family's attorney through the Transgender Legal Defense & Education Fund, said: “This is by far the high-water mark for cases dealing with the rights of transgendered people to access bathrooms." Silverman and others feel that Coy's case is just "one of several potentially ground-breaking transgendered civil-rights cases winding their way through the nation’s courts." The Transgender Legal Defense & Education Fund released a statement soon after the verdict. It said: “ This is the first ruling in the nation holding that transgender students must be allowed to use bathrooms that match who they are, and the most comprehensive ruling ever supporting the rights of transgender people to access bathrooms without harassment or discrimination. ” There are opponents to the court's ruling. Mat Staver of Liberty Counsel called the ruling a "mockery of civil rights." Staver is worried how businesses and organizations providing public restrooms, like schools, restaurants and stores, will keep the public safe. He argued, “ How do you know if someone is really thinking this way or not? How do you know if someone just wants to go in the restroom and be a peeping Tom? ” Peter Sprigg of the Family Research Council is also opposed. He said transgender people differ from gay people, explaining, “ Sexual orientation is largely invisible. In this case, you’re dealing with something that’s manifest visibly. ” Sixteen states, including Colorado, and the District of Columbia have passed laws forbidding discrimination against transgender people. Additionally, school districts in many states have policies permitting "transgender students to use the bathroom of the gender with which they identify." Vice President Joe Biden has called transgender rights the "civil rights issue of our time." According to research by the Lambda Legal Defense Fund, 44 percent of "hate murders" in 2010 were of transgender women. According to M. Dru Levasseur, director of Lambda's Transgender Rights Project, “[t]ransgendered people don’t always fit in binary boxes so there has been more difficulty in social acceptance.” Since filing the complaint, Coy and her family have moved to the Denver suburb of Aurora where she will start school as a girl in the fall. Also, "gender identity disorder" is no longer recognized by the American Psychological Association as a mental disorder; the APA removed the disorder from its list of acknowledged mental disorders in 2012 to "[reflect] the growing medical consensus that identification as another gender cannot be changed."

News from West Virginia Marshall University escapes anal bottle rocket lawsuit on technicality   Court: Sixth Judicial Circuit, West Virginia The West Virginia Attorney General’s Office has dismissed the Marshall University Board of Governors as defendants in a lawsuit that involves a student launching a bottle rocket from his anus at a fraternity party near campus. In a complaint filed in the Cabell County Circuit Court in January 2012, the plaintiff, Louis Helmburg III, claimed that in the early morning of May 11, 2011, an intoxicated student named Travis Hughes attempted to launch a bottle rocket off the deck of the Alpha Tau Omega fraternity house by inserting it into his anus and lighting the fuse. The rocket failed to launch, however, and blew up in Hughes’ rectum. Helmburg argued that the impromptu posterior projectile was so startling that he jumped off the deck, falling between the deck and an adjacent building’s air conditioning unit. Helmburg claimed that there was no railing on the deck at the time of the incident, and that the fraternity, Alpha Tau Omega , was negligent in failing to provide one. Additionally, Helmburg stated, “ Defendant Hughes also owed plaintiff and others on the ATO deck a duty of care not to drink under age, or to fire bottle rockets out of his anus. ” Helmburg included the University’s Board of Governors as defendants in the suit. However, according to the Attorney General’s order granting the University’s Motion to Dismiss, Helmburg failed to notify the University President and the Attorney General in writing 30 days prior to filing the complaint, as required by West Virginia law. The Attorney General’s order did, however, affirm that the suit against the remaining two defendants may continue.	News from Wisconsin Raw milk farmer fined, avoids greater sentence   Court: Sauk County Circuit Court, Wisconsin A Wisconsin dairy farmer sidestepped jail time and a maximum $10,000 fine when Sauk County Circuit Court Judge Guy Reynolds ordered that he be fined only $1,000 plus court costs. Vernon Hershberger, prosecuted by state officials three years ago for producing milk without a license and operating an unlicensed dairy plant, has gained national fame as the topic of "food freedom" is increasingly debated. He was acquitted on June 13 of three charges, found guilty only of violating the state-issued hold order barring him from distributing various products in his store. The farmer said it was an act of civil disobedience when in June 2010 he cut seals that the Department of Agriculture, Trade and Consumer Protection officials placed on his coolers and shelves. He claimed that he had practical reasons for breaking the seals, including the need to feed his 10 children during the lengthy legal procedures. Judge Reynolds was careful to emphasize that this case was not about the merits or risks of raw milk. Current Wisconsin law allows only for occasional "incidental" sales of raw milk—and this outcome, though considered a major victory by food freedom proponents, is not a green light for those hoping to sell unpasteurized dairy products. Reynolds commented, "This court does not make or change laws. That is a matter for the Legislature." He agreed with Hershberger's attorney that a jail or probation sentence would be inappropriate, as this was the first time the farmer had been in trouble with the law. Hershberger's lawyer requested a new trial on the one count he was convicted of, but Judge Reynolds denied the request.
News from New Hampshire Private school on the state's dime, with a business tax break on the side?   Court: New Hampshire Superior Courts Justice John M. Lewis issued a 45-page order on June 17, 2013 in the case of Duncan v. The State of New Hampshire filed in Strafford County Superior Court. Plaintiffs in the suit were a New Hampshire business and eight residents of the state. The suit sought to block a program known as the Education Tax Credit program on the grounds that it violates the state's Constitution. Lewis found the program violates Part II, Article 83 of the New Hampshire Constitution. Known as the “no aid clause”, it prohibits tax money from being used to fund “religious schools”. By his order, Lewis immediately blocked these types of schools from receiving any aid through the program. The Education Tax Credit program was put in place in June 2012, after the New Hampshire Legislature overrode a veto by former Governor John Lynch. Under the rules of the program, businesses in the state can take a tax credit worth 85 percent of the amount of any donations they make to a qualified scholarship organization. These approved organizations then award the scholarship money to students. Upon learning of the ruling, current Governor Maggie Hassan noted: “ Today’s ruling is a victory for New Hampshire public education. The voucher tax credit would divert millions of dollars in taxpayer money to religious schools with no accountability or oversight. ” According to plaintiffs, at the time they filed their complaint, over 17,000 students in the state were enrolled in private, general education schools. Of that number, approximately 66 percent of those students attended private religious institutions. By April 2013, NEO, an organization authorized to distribute scholarship money from the program, had received 701 applications for aid. Of these, approximately 419 students wished to use the funds to attend a non-public, religious school. 106 students chose a non-religious, private school and three chose a public school. An additional 148 students requested scholarships for homeschooling. Ashley Pratte, Executive Director of Cornerstone Action said, “ I am appalled by this decision. The Education Tax Credit was carefully established to work within New Hampshire law. In fact, it is run solely on donations from businesses. It is not derived from taxpayer funds and is, in fact, a charitable program working to the benefit of our most vulnerable families in the Granite State. While I appreciate the value of public education for all, we must never forget that it is the parent who is responsible for the education of their child. . . ” Others believe the state court ruling is incorrect as well. According to the Cato Institute, funds generated by the program should not be considered public money. The Institute notes prior precedent in New Hampshire offers legal support for the program. According to former Justice Charles Douglas III of the New Hampshire Supreme Court, “ . . .even traditional vouchers would be constitutional because the benefit to religious organizations is indirect and incidental to the choices of parents. ” Students planning to use the scholarship money to attend non-religious private schools, a public school outside of their district or home schools will still be permitted to do so under Judge Lewis’ ruling. An appeal has not yet been filed in the case.	News from Iowa Iowa Supreme Court rules school may be liable for off-campus rape   Court: Iowa Supreme Court The Iowa Supreme Court ruled on June 21, 2013, that a school may face liability for a sexual assault that occurred after school hours and off-campus. The case was brought by a mother, suing in her own right and on behalf of her 14-year old daughter (identified as D.E. for the sake of privacy) against the school at which D.E. was a special education student. The suit arises from events which occurred in the fall of 2007, when D.E. skipped her last class period to spend time with friends, including a male, 19-year old special education student, identified as M.F., who was "in a relationship" with D.E. Earlier in the day, D.E. phoned her mother and asked permission to ride the bus with a friend to her friend's house. While her mother found the request odd, since she or one of D.E.'s grandparents always drove her to and from school, she consented and asked D.E. to phone her when she arrived at her friend's house. D.E.'s school day typically ended at 2:45 PM, but she and her friend left school around 1:45 PM, meeting up with M.F. in the school parking lot. Upon seeing that D.E. was absent from her last class, her teacher marked her absent in the computer system but took no further action to discover D.E.'s whereabouts or reason for her absence. After leaving school, the group went to M.F.'s grandparents' house, where they remained for about 20 minutes. D.E. and M.F. left the house and walked to the nearby home of one of M.F.'s friends, who was also a special education student. The two were allowed into the friend's garage, where M.F. raped D.E. while the friend watched and fired a BB gun at D.E. Then, M.F. and D.E. left and began walking back to D.E.'s friend's house, where D.E. had told her mother she was going after school. D.E. did not tell her mother what had happened that afternoon until more than six months later. Her mother filed this suit in November 2009, alleging that the school had violated its duty to D.E. in several different ways. After a trial in the Iowa District Court for Linn County, the jury awarded D.E. and her mother $350,000 and Judge Nancy A. Baumgartner denied the posttrial motions of the school district for a judgment notwithstanding the verdict. The Iowa Supreme Court affirmed the decision in the majority opinion drafted by Justice Daryl Hecht, stating that the school would certainly be liable for "'risks arising while a student is at school or otherwise engaged in school activities'," but the events that occurred here were "'risk[s] arising at school' but materializing at some later time." However, since the school failed to raise arguments in the Iowa District Court regarding its duty to D.E. after school hours, the school could not raise them for the first time on appeal. The Iowa Supreme Court, therefore, reserved deciding what the outcome would be for a similar case, should future schools decide to argue that the school may only be liable for what happens while a student is at school. Dissenting Justice Thomas Waterman called this reservation the "ruling's only 'saving grace'". He said he felt that the ruling created "an unreasonable burden on teachers and administrators."
News from Oregon Man on death row cannot decline Governor's reprieve   Court: Oregon Supreme Court Oregon's governor, John Kitzhaber, doesn't agree with the death penalty. As governor, he also has the power to stop the executions of those on death row, a legal right of which he has taken advantage. The question the Oregon Supreme Court recently faced was, "What if someone wants to be executed?" In 2011, two weeks before inmate Gary Haugen was to be executed for two murders, Kitzhaber granted a reprieve. Haugen, however, does not want to live. He sued the Governor, arguing that he should be able to choose whether or not to accept the reprieve. This argument was supported by Senior Judge Tim Alexander of the Marion County Circuit Court (3rd Judicial District). Gov. Kitzhaber then appealed to the Supreme Court. The court ruled in favor of the Governor on June 20, 2013, stating: “ The Oregon Constitution does not provide the recipient of a Governor's act of clemency with a corresponding individual right to reject that clemency. ” There was little precedent to work with, since those on death row typically don't try to reject a Governor's grace. The court explained that only the legislature could regulate the Governor's power to grant clemency. The justices did not agree with Haugen's Eighth Amendment argument that the uncertainty of being on death row amounts to cruel and unusual punishment. They also explained that, regardless of the Governor's motives, his power to grant clemency is constitutionally granted and "is one of the Governor's only checks on another branch of government." Chief Justice Thomas Balmer wrote the decision. Gov. Kitzhaber praised the ruling while appealing to the Legislature to eliminate capital punishment completely. He said, “ I renew my call for a re-evaluation of our current system that embraces capital punishment, which has devolved into an unworkable system that fails to meet the basic standards of justice. ” Haugen was first sentenced to death in 2007. The reprieve granted to him will remain in effect until Kitzhaber leaves office and a judge issues a new death warrant.

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• Courtroom Weekly