Amicus Curiae Brief — Morgan v. Chris L. ex rel. Mike L.

MOON FILED 3 Pg

MAY - 8 1997

No. 96-1681

In The

Supreme Court of the United States

October Term, 1996

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ALLEN MORGAN, Superintendent.

Knox County Schools,

Petitioner,

VS.

CHRIS L., a minor,

by next friend, MIKE L.,

Respondent.

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On Petition For Writ Of Certiorari

To The Court Of Appeals

For The Sixth Circuit

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MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF ON BEHALF OF GEORGIA

SCHOOL BOARDS ASSOCIATION, INC., AMICUS

CURIAE, IN SUPPORT OF PETITIONER

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E. FREEMAN LEVERETT

Counsel of Record

Hearp, Leverett & Gunter, L.L.C.

25 S. Thomas Street

P. O. Drawer 399

Elberton, Georgia 30635

Tel: 706/283-2651

Fax: 706/283-2670

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE ON BEHALF OF GEORGIA SCHOOL

BOARDS ASSOCIATION (GSBA) IN SUPPORT

OF THE PETITION FOR CERTIORARI

Georgia School Boards Association, Inc. (GSBA),

respectfully moves for leave to file brief amicus curiae

attached hereto in support of Petitioner for Certiorari to

the United States Court of Appeals for the Sixth Circuit,

and for grounds shown as follows:

4

1.

INTEREST OF THE AMICUS CURIAE

Georgia School Boards Association, Inc. (GSBA) is a

non-profit, charitable membership corporation, com-

prised of all the public school districts in Georgia, consis-

ting of 159 County and 21 Independent or municipal

school districts. As an organization representing all of

these districts, Movant has a vital interest in the issue

presented in this case. While the Eleventh Circuit Court

of Appeals has not addressed this question, the decision

of the Sixth Circuit is a precedent which the Eleventh

Circuit would undoubtedly consider, and amicus has an

interest in any precedent, whether binding or otherwise,

which deals with this subject.

a

The State of Georgia has two mandatory offense-

reporting statutes which also would be impacted by a

decision such as that rendered by the Sixth Circuit below.

In Georgia, a decision such as that rendered by the Sixth

Circuit arguably would obligate teachers and school offi-

cials to violate State criminal laws.

2.

Respondent has declined to grant consent to the fil-

ing of any brief amicus curiae on behalf of Petitioner.

E. FREEMAN LEVERETT

Counsel of Record

Hearp, Leverett & Gunter, L.L.C.

25 S. Thomas Street

P. O. Drawer 399

Elberton, Georgia 30635

Tel: 706/283-2651

Fax: 706/283-2670

TABLE OF CONTENTS

Page

Motion for Leave To File Brief Amicus Curiae on Behalf

of Georgia School Boards Association (GSBA) In Sup-

port of the Petition for Certiorari..................

Interest Of The Amicus Curiae ....................

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Brief Amicus Curiae on Behalf of Georgia School

Boards Association, Inc., in Support of the Petition

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Scope of the Court of Appeals Decision — Prosecu-

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No Pre-emption in Absence of Clear Congressional

EG Se PAE ERS KG ohne 8S SEL ca OES Cosew ee bac

ii

TABLE OF AUTHORITIES

DECISIONS

Allen Bradley Local No. 1111 v. Wisconsin

Employment Relations Board, 315 U.S. 740

by, Ss Bee ee er ey ee Pere res Ty eer rT rae Tar

Commonwealth of Virginia v. Riley, 86 F.3d 1337

8k | er see eye per mh tern ry Tre re Te

Commonwealth of Virginia Department of Educa-

tion v. Riley, 106 F.3d 559 (4th Cir. 1997)......

D.b. v. Clarke County Board of Education, 220 Ga.

Pi. SEF CES ois 06s Conn doe pee Ke

Kesler v. Department of Safety, Financial Report-

ing Division, 369 U.S. 153 (1962)..............

Malone v. White Motor Corp., 435 U.S. 497 (1978)

Milk Wagon Drivers v. Meadowmoor Dairies, 312

Ak Re go | ere ren erry errr Tra peetey

Thornhill v. Alabama, 310 U.S. 88 (1946)........

STATUTES

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TABLE OF AUTHORITIES - Continued

Page

Be Ua Pie 8b ois es Secs eee 2

Oe Wile SEER a 5s 5550 be CEN EE RAG one 8

Pe Ge PEE i a x3 UNS Rha eae baSw aS oe 2

§14602, Improving America’s Schools Act, P.L.

ROG EN Ns OO o's Sap crude bi peeebueesawoes 8

CONSTITUTIONAL PROVISIONS

Constitution of Georgia, Art. VIII, Sec. I, Par. ...... 2

BRIEF AMICUS CURIAE ON BEHALF OF GEORGIA

SCHOOL BOARDS ASSOCIATION, INC., IN

SUPPORT OF THE PETITION FOR CERTIORARI*

SUMMARY OF ARGUMENT

Because this Court has seldom, if ever, held that a

federal statute precludes a state from enforcing state laws

enacted in the exercise of the state’s police power to

protect the lives and safety of its citizens from violence,

the Individuals with Disabilities in Education Act should

not be interpreted, as did the Court of Appeals below, as

prohibiting school officials from filing charges with juve-

nile officials with respect to the disruptive behavior of a

disabled student without first following the change in

placement procedures under the act. As further illustra-

tive of the potential mischief of the Sixth Circuit’s hold-

ing, additional questions arise as to whether the IDEA

not only prohibits school officials from filing charges

with juvenile officials but also from reporting such

offenses pursuant to a state student offense reporting

statute. Similarly, what is the duty, if any, of a school

district where either a student or teacher who is assaulted

by a disabled student, either files charge or reports the

offense to juvenile or other law enforcement officials?

* Counsel for a party did not author this brief in whole or in

part. No person or entity, other than the Amicus Curiae, its

members, or its counsel made a monetary contribution to the

preparation and submission of this brief.

ARGUMENT

The Court of Appeals below held that the Knox

County, Tennessee School District violated the IDEA

when it filed a juvenile court petition against a disabled

student for destruction of school property without first

exhausting the procedures under IDEA for change in

placement of the disabled student who had been deter-

mined to be suffering with Attention Deficit Hyperactive

Disorder (ADHD). These procedures include, inter alia,

utilization of the “Stay Put” provision, 20 USC 1415(3)

(3), under which the child must remain in his current

placement pending exhaustion of the procedures — pro-

ceedings which can take months and even years.

The Court of Appeals’ decision is rather simplistic:

Because IDEA guarantees disabled children a “Free

Appropriate Education”, 20 USC 1412(2) (B), and 34 CFR

300.121, and “After the process is initiated in determining

a child’s status as disabled, the child’s educational place-

ment and any subsequent change in placement are governed

by the procedures of the IDEA” (Opin., pp. 6-7) disabled

students are not subject to juvenile or criminal incarcera-

tion. (emphasis supplied)

This same reasoning, of course, could result in school

districts being unable to suspend or expel non-disabled

students for disruptive conduct, for most states, like

Georgia, have a constitutional or statutory provision

guaranteeing children an “adequate” or other public edu-

cation. See Constitution of Georgia, Art. VIII, Sec. I, Par. I;

OCGA §20-2-131 et seq. In D.B. v. Clarke County Board of

Education, 220 Ga. App. 330, 469 S.E.2a 438 (1996), the

argument was made that these provisions precluded local

school officials from permanently expelling any student

for misconduct. The Georgia Court rejected this conten-

tion, declaring:

“The protection afforded by the Georgia

Constitution is clearly both broader and more

specific than that provided by the federal consti-

tution in this area. The right to a free public

education is not unlimited, however, under the

Georgia Constitution. Even in those states rec-

ognizing an entitlement to education, courts

have declared that [t]his entitlement does not

ailow the child to escape the consequences of

misconduct in a public school, nor does it con-

tradict the inherent authority of a school board

to maintain order and discipline in public

schools.” (220 Ga. App. at 331-332).

A similar scenario was presented under the IDEA to

the Fourth Circuit recently. A panel court held that a

Virginia policy whereby disabled students could be sus-

pended or expelled like nondisabled students when the

behavior in question was unrelated to their disabilities

violated the IDEA requirement that the state provide all

disabled students with a free, appropriate public educa-

tion. The panel court applied the syllogism rejected in the

Georgia case, held the Virginia policy to be invalid, and

upheld the withholding of all federal funds to Virginia

under IDEA. Commonwealth of Virginia v. Riley, 86 F.3d

1337 (4th Cir. 1996). An en banc court, however, reversed,

declaring:

“1. In order for Congress to condition a state's

receipt of federal funds, Congress must do so

clearly and unambiguously. See South Dakota v.

Dole, 483 U.S. 203, 207, 107 S.Ct. 2783, 2796, 97

L.Ed.2d 171 (1987). Language which, at best,

only implicitly conditions the receipt of federal

funding on the fulfillment of certain conditions

is insufficient to impose on the state the condi-

tion sought.

2. Title 20, U.S.C. §1412(1) guarantees that all

children with disabilities be provided ‘the right’

to a free public education; this section does not

purport to require that every disabled child be

provided a free public education regardless of

state disciplinary policies governing the provi-

sion of educational opportunities to disabled

students expelled or suspended for criminal or

other serious misconduct wholly unrelated to

their disabilities. Since the plain language of the

IDEA does not, even implicitly, condition the

receipt of IDEA funding on the continued provi-

sion of educational services to disabled students

who are expelled or suspended long-term due to

serious misconduct wholly unrelated to their

disabilities, the United States Department of

Education was without authority to condition

the Commonwealth of Virginia’s receipt of IDEA

funding on the continued provision of free edu-

cation to such students.

3. A substantial constitutional question under

the Tenth Amendment would be presented were

the Secretary of Education’s interpretation of the

IDEA upheld, as the withholding of the Com-

monwealth’s entire IDEA funding allotment

because of its refusal to provide private tutors to

the 126 disabled students expelled or suspended

for serious misconduct wholly unrelated to their

disabilities resembles impermissible coercion, if

not forbidden regulation in the guise of Spend-

ing Clause condition.” Commonwealth of Virginia

Department of Education v. Riley, 106 F.3d 559, 561

(4th Cir. 1997).

The Riley case makes a cogent statement which some-

times is disregarded with respect to the interpretation of

statutes in the nature of an anti-discrimination measure.

The trend is for courts to give these statutes an absolutist,

unlimited application, and that produces illogical situa-

tions like that of the panel court in Riley, and the Court of

Appeals below.

+

SCOPE OF THE COURT OF APPEALS DECISION -

PROSECUTION OR SIMPLE REPORTING?

The facts in Morgan v. Chris L. indicate that the school

district there actually filed charges against the student

with the juvenile court. An important question is, how-

ever, whether or not that is as far as the decision goes?

These scenarios fairly are presented:

(1) The school district doesn’t prosecute, but merely

reports the acts to law enforcement officers as required by

State law;

(2) The teacher which the student assaulted files

charges on his or her own in a warrant or juvenile court

petition;

(3) The parents of a student who was the victim of

the disabled child’s assault files charges with law

enforcement authorities.

In either of these situations, does the school district

have any responsibility to try to get the victim - whether

teacher or student — to dismiss the charges? And, are the

school district officials obligated to violate state law at

the risk of criminal prosecution, by failing to report?

Many states now have mandatory child abuse report-

ing statutes. Georgia has two. The general child abuse

reporting statute is OCGA §19-7-5 (Supp.). This section

specifically identifies teachers, school administrators and

counselors as being persons who must report, on pain of

being guilty of a misdemeanor, OCGA §19-7-5(c); par. (h),

but its applicability to student-on-student child abuse is

limited by a provision which says that child abuse does

not cover acts except those committed by a parent or

caretaker, OCGA §19-7-5(b)(3), and another provision

defines “sexual abuse” as excluding acts committed

between minors or between a minor and an adult who is

not more than five (5) years older than the minor. OCGA

§19-7-5(b)(3.1).

The other reporting statute, however, applies only to

public school students who commit any one of a long list

of offenses.! Under a decision like that in Morgan v. Chris

1 OCGA §20-2-1184 declares:

“(a) Any teacher or other person employed at any public

or private elementary or secondary school or any dean or public

safety officer employed by a college or university who has

reasonable cause to believe that a student at that school has

committed any act upon school property or at any school

function, which act is prohibited by any of the following:

(1) Code Section 16-5-21, relating to aggravated

assault if a firearm is involved;

(2) Code Section 16-5-24, relating to aggravated

battery;

L., would school officials be required to violate the stu-

dent offense reporting law? Reporting sometimes results

in law enforcement officers bringing charges, especially

on gun-type charges. In this respect, federal law also

(3) Chapter 6 of Title 16, relating to sexual

offenses;

(4) Code Section 16-11-127, relating to carrying

deadly weapons at public gatherings;

(5) Code Section 16-11-127.1, relating to

carrying weapons at school functions or on school

property or within school safety zones;

(6) Code Section 16-11-132, relating to the

illegal possession of a pistol or revolver by a person

under 18 years of age; or

(7) Code Section 16-13-30, relating to possession

and other activities regarding marijuana and

controlled substances,

shall immediately report the act and the name of the student to

the principal or president of that school or the principal's or

president’s designee.

(b) The principal or designee who receives a report made

pursuant to subsection (a) of this Code section who has

reasonable cause to believe that the report is valid shall make an

oral report thereof immediately by telephone or otherwise to the

appropriate school system superintendent and to the

appropriate police authority and district attorney.

(c) Any person participating in the making of a report or

causing a report to be made as authorized or required pursuant

to this Code section or participating in any judicial proceeding

or any other proceeding resulting therefrom shall in so doing be

immune from any civil or criminal liability that might otherwise

be incurred or imposed, providing such participation pursuant

to this Code section is made in good faith.

(d) Any person required to make a report pursuant to this

Code section who knowingly and willfully fails to do so shall be

guilty of a misdemeanor.”

contains a mandatory reporting act, for §14602 of the

Improving America’s Schools Act, P.L. 103-38, 108 Stat.

3908 declares:

“(a) IN GENERAL. —- No funds shall be

made available under this Act to any local edu-

cational agency unless such agency has a policy

requiring referral to the criminal justice or juve-

nile delinquency system of any student who

brings a firearm or weapon to a school served

by such agency.

“(b) DEFINITIONS. - For the purpose of

this section, the terms ‘firearm’ and ‘school’

have the same meaning given to such terms by

section 921(a) of title 18, United States Code.”

(20 USC 8922).

If the rationale of the Sixth Circuit prohibits a school

district from complying with state student offense report-

ing laws, or if a victim of an assault by a handicapped

child is prohibited from prosecuting the offense, the

IDEA is being elevated above the safety and lives of

innocent students and teachers.

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NO PRE-EMPTION IN ABSENCE OF CLEAR

CONGRESSIONAL INTENT

“

It is uncontested that whether the . Statute is

invalid under the Supremacy Clause depends upon the

intent of Congress.” Malone v. White Motor Corp., 435 U.S.

497, 504, 55 L.Ed.2d 443, 98 S.Ct. 1185 (1978).

In congressional pre-emption cases governing the

right of unions to picket and demonstrate under the

National Labor Relations Act, it is established by deci-

sions of this Court that there is one area that demands

equal or higher protection: the police power of the state

to protect the safety and security of its citizens and prop-

erty. “ .. . [T]his Court has long insisted that an intention

of Congress to exclude states from exerting their police

power must be clearly manifested * * * We will not lightly

infer that Congress by the mere passage of a federal act

has impaired the traditional sovereignty of the several

states in that regard. * * * But, as we have said the federal

Act does not govern employee or union activity of the

type here enjoined. And we fail to see how the inability to

utilize mass picketing, threats, violence, and the other

devices which were here employed impairs, dilutes, qual-

ifies or in any respect subtracts from any of the rights

guaranteed and protected by the federal Act.” Allen

Bradley Local No. 1111 v. Wisconsin Employment Relations

Board, 315 U.S. 740, 749-750, 86 L.Ed. 1154, 62 S.Ct. 820

(1942).

Under the Freedom of Speech protected by the First

Amendment, where the right of picketing rises to its

highest level and is deemed to be a right so essential “to

the maintenance of democratic institutions”, Thornhill v.

Alabama, 310 U.S. 88, 96, 84 L.Ed. 1093, 60 S.Ct. 736 (1946),

even the Fourteenth Amendment bows to the State’s

police power where picketing otherwise peaceful is seen

to be enmeshed or “entangled with acts of vio-

lence. * * * The Fourteenth Amendment still leaves the

state ample discretion in dealing with manifestations of

force in the settlement of industrial conflicts.” Milk Wagon

Drivers v. Meadowmoor Dairies, 312 U.S. 287, 294-295, 85

L.Ed. 836, 61 S.Ct. 552 (1941). “[T]he “police power” of a

10

State, especially when exerted for the protection of life

and limb, is as pervasive as any of the reserved powers of

the States and should be respected unless there is a clear

collision with a national law which has the right of way

under the Supremacy Clause of Article 6.” Kesler v.

Department of Safety, Financial Reporting Division, 369 U.S.

153, 172, 7 L.Ed.2d 641, 82 S.Ct. 807 (1962).

In the calculus of values inherent in the public

schools, there can be no higher priority than that which

should be accorded to the personal safety and protection

of innocent students and teachers, and this Court should

not sanction a Court decision which seems to give vio-

lent, disruptive, disabled children a license to pillage,

maim and even kill, free from the traditional criminal

processes relied upon to protect human life and property.

Certiorari should be granted.

Respectfully submitted,

E. FREEMAN LEVERETT

State Bar No. 448000

Hearp, Leverett & Gunter, L.L.C.

P.O. Drawer 399

Elberton, Georgia 30635

Tel: 706/283-2651

FAX: 706/283-2670

Attorneys for Georgia School Boards

Association, Inc., Amicus Curiae