A recent federal Appellate Court decision illustrates the importance of prompt and effective investigations of and responses to claimed peer-to-peer harassment to avoid a determination of “deliberate indifference.”

In S. S. v. Eastern Kentucky University, 532 F.3d 445 (6th Cir. 2008), a disabled student alleged that the University failed to adequately address or remedy his peer harassment complaints. The student alleged the school had inadequately responded to his complaints about harassment, and disciplined him differently than his peers. Consequently, he claimed discrimination in violation of the Americans with Disabilities Act (ADA) and Section 504 of the Civil Rights Act (§504).

Under either the ADA or §504, a claimant must show that (s) he: 1) is disabled under the law, 2) “otherwise qualified” for participation in the program 3) was excluded from participation, denied the benefits of, or subjected to discrimination under the program by reason of her/his disability and that the school is receiving federal financial assistance.

The 6th Circuit Court of Appeals, applying the Supreme Court’s standard in peer-to-peer harassment cases set out in Davis v. Monroe County Board of Education, 526 U.S. 629 (1977)(liability imposed where school demonstrates “deliberate indifference” toward claim of harassment), concluded that Eastern Kentucky had not shown a “deliberate indifference” to the alleged harassment. Therefore, the Court denied relief.

The Court determined that the school investigated each complaint and instituted disciplinary actions against the responsible students. It also sponsored anti-harassment and bullying programs, utilized mediation sessions to address the issues, and involved the parents of the students. Important to the Court’s holding was its finding that the school investigated and addressed each complaint individually, and tailored its response to the specific facts in each case.

For more on this decision, the requirements for handling discrimination complaints, or other information on the ADA or Section 504, feel free to call our offices.

To help determine which of its 245 managers should be laid off, a federal contractor, Knolls Laboratory, ranked managers based on “performance,” “flexibility,” and “critical skills;” as well as years of service. Thirty-one managers were eventually laid off under this system – thirty of them were at least forty years old. Twenty-eight of the laid off employees sued under the federal Age Discrimination in Employment Act (ADEA).

The Plaintiffs claimed that Knolls “designed and implemented its workforce reduction process to eliminate older employees and that, regardless of intent, the process had a discriminatory impact on [protected] employees.” They relied on statistical analyses to show that the layoff of so many older workers was impossible to attain simply by chance. Plaintiffs also argued that the criteria of “flexibility” and “critical skills” (which managers had the most discretion in determining) were overly subjective, and therefore biased the results to disproportionately target older workers.

The initial jury verdict in favor of the Plaintiffs, which was affirmed by the 2nd Circuit Court of Appeals, was vacated by the Supreme Court in light of an intervening decision issued in Smith v. City of Jackson, 544 U.S. 228. On remand, the 2nd Circuit Court of Appeals reversed, reasoning that the Smith decision had changed the standard of review to one of “reasonableness” and that the burden of persuasion was on Plaintiff to prove the unreasonableness of Defendant’s non-age factors. Plaintiffs sought certiorari and noted that various Courts of Appeals had issued conflicting decisions regarding the burden of persuasion (2nd Circuit had placed the burden on Plaintiffs in this case; 9th Circuit had placed burden on employer in Criswell v. Western Airlines, Inc., 709 F.2d544(1983)).

The Supreme Court held that when an affirmative defense is asserted, the burden of producing (coming forward with) evidence and the burden of persuading the court rests with on the party asserting the affirmative defense. Consequently the 2nd Circuit’s shift of the burden was error. The Court also concluded that an employer which uses an age-neutral method for determining which employees should be terminated “may still be liable under [ADEA] if [the methodology or classification] adversely affects the employee because of that employee’s age.”
Meacham et al. v. Knolls Atomic Power Laboratory, a.k.a. Kapl, Inc., et al., No. 06-1505 (U.S. Jun. 19, 2008)

In a recent South Carolina case , the federal 4th Circuit Court of Appeals concluded that because a School District had posted the message at issue (opposing voucher legislation on grounds that it would “undermine [] the State’s commitment to ensure that all South Carolina children enjoy the right to free, quality public education”), and maintained control over the content and dissemination of the message, that content was “government speech” and beyond the scope of the First Amendment. The Court reasoned that the First Amendment protects individuals against governmental intrusion, regulation or abridgement of the “freedom of speech.” Page v. Lexington County Sch. Dist. One, No. 07-1697 (4th Cir. June 23, 2008)
As the Court observed:

The First Amendment protects against any governmental activity that abridges “the freedom of speech” of non-governmental persons, but it does not regulate the government’s own policies or its speech in support of them. Government speech “is, in the end, accountable to the electorate and the political process for its advocacy.” (Citations omitted).

The School District was sued by a proponent of the voucher legislation who asked for equal access to District’s website in order to post his views. The District denied his request, and the Plaintiff sued, alleging that the School District had violated his First Amendment rights by denying him equal access to the District’s “informational distribution system.” The federal District Court entered judgment in favor of the School District, and the 4th Circuit Court of Appeals affirmed. Both Courts viewed the School District’s campaign as “government speech” and determined that the School District’s website was not a public forum.

In determining that the School District’s website was not a public forum, the Court looked to “whether [the school district’s] communications about its opposition to the [voucher legislation] were government speech or whether the School District used its channels of communication to disseminate the viewpoints of private speakers against the [legislation] to the exclusion of private speakers in favor of the bill, thus discriminating in a limited public forum based upon the speaker’s viewpoint.” Although the District had internet links to third parties opposed to the legislation on its website, those third parties had not requested that links to their sites be posted on the District website; the District had posted the links on its own. The District also maintained the ability to remove or add internet links as it saw fit. The information posted on the website was created and controlled by the District, and the District did not solicit comments, articles, or opinions from any outside sources - pro or con.

Although this particular case involved a school district, the analysis ought to apply to any government website. While the internet can be powerful, public entities need to carefully control the content on their websites. If you have questions about your website, or the need for, or content of, a policy to control that content, give us a call.