Courts rule on discrimination and privacy

Courts rule on discrimination and privacy

Bell, Andrea



EEOC v. Liberal R-II Sch. Dist.

Docket Nos. 02-1025/02-1029 (8th Cir. 2002)

The Eighth Circuit Court of Appeals decided to allow a former bus driver to pursue an age discrimination case against his school district in Missouri. George Trout was a 70-year-old bus driver for the Liberal R-II School District when the school board decided not to renew his contract. According to the school board, Trout was dismissed for safety concerns. However, Trout alleged that the board fired him for being “too old.” As evidence, Trout recalled a conversation that he had with the superintendent during which the superintendent explained to Trout that the board thought he was too old to drive a bus. Although the superintendent denied making the comment, a document filed by the superintendent with the Missouri Department of Labor stated, “The fact that Mr. Trout is now 70 1/2 years of age and that the public had voiced concerns about his driving safety, his continuation as a bus driver for the coming year was not approved by the Board of Education.” (Italics in original.)

The district court found in favor of the school district. On appeal, the Eighth Circuit reversed the decision because there were unresolved questions regarding whether the school board intentionally discriminated against Trout. One way to make a claim under the Age Discrimination in Employment Act (ADEA) is for the claimant to present direct evidence of discrimination showing that age was a motivating factor in the decision– making process. The burden of proof then shifts to the defendant to show that the same employment decision would have been made despite the direct evidence of discrimination.

In the present case, although the superintendent did not make employment decisions, a jury could infer that the superintendent spoke on behalf of the school board members, who were the ultimate decisionmakers. Therefore, the communication between Trout and the superintendent, as well as the paper filed by the superintendent with the Department of Labor, ultimately could be attributed to the school board. The Eighth Circuit sent the case back to the district court for trial to determine whether the school board intentionally discriminated against Trout in violation of the AREA.


Lautermilch v. Findlay City Schools

Docket No. 01-3502 (6th Cir. 2002)

John Lautermilch was a substitute teacher for the Findlay City (OH) Schools when his behavior became a concern for school officials. In particular, the school was concerned with his tutoring a female student at his home; telling inappropriate jokes in class; making comments about a teacher’s breasts; and commenting to one student, “Lips who [sic] touch alcohol may not touch mine, but it does not rule out any other part of my body.” In light of these reported incidents, Principal Kathleen Crates decided not to call on Lautermilch to substitute in her school. When Lautermilch questioned Crates’ decision, she stated that Lautermilch was “too macho.”

Lautermilch filed suit against the school district and Crates, alleging that his termination as a substitute teacher violated his due process and First Amendment rights and constituted unlawful sex discrimination. The district court decided in favor of the school and Lautermilch appealed to the Sixth Circuit Court of Appeals.

The Sixth Circuit dismissed Lautermilch’s appeals regarding the First Amendment because his speech was not related to matters of public concern. It also dismissed his appeals concerning due process because substitute teachers in Ohio have no property rights to their jobs. The court then addressed the sex discrimination issue.

Similar to claims under the ADEA, an individual may show direct evidence that the employer’s decision was motivated by a discriminatory factor, then shift the burden of proof to the defendant to show that the same employment decision would have been made despite the direct evidence of discrimination. Lautermilch attempted to show direct evidence of unlawful sex discrimination by relying on Crates’ comment that he was “too macho.” However, the court concluded that the offhand statement by Crates did not show that discrimination was the motivating factor behind his dismissal. Instead, the court stated that the comment was “critical of Lautermilch’s behavior, not his sex or gender.” The court further found that even if the comment was considered discriminatory, the school still had a legitimate, nondiscriminatory reason for discharging Lautermilch.

In a dissenting opinion, one judge sided with Lautermilch’s position saying that when a decisionmaker, such as Crates, makes a gender-based comment at a termination hearing, one can infer that gender was a motivating factor in the decision. As such, the court should have considered the “too macho” comment as direct evidence of discrimination and should have allowed the matter to go to trial.


Rim of the World Unified Sch. Dist. v. The Superior Court of the County of San Bernardino

Docket No. E032252 (CA App. 4th Dist.. 2002)

The Rim of the World Unified School District in California faced a dilemma when asked to allow Larry Komar, a private individual, to “review all documents pertaining to any and all suspensions over three days, and all expulsions acted on during the period of January 1, 1998, through the present.” School officials refused to disclose the records because doing so would result in an unlawful invasion of privacy, and they offered to provide statistical information regarding suspensions and expulsions. Komar modified the request by asking only for expulsion records, citing the California Education Code, which states that “records of expulsions shall be a non-privileged, disclosable public record,” and an opinion letter issued by California’s attorney general supporting the proposition that names and reasons for expulsion were not private information. School officials again refused, basing their decision on California’s privacy law and the Family Educational Rights and Privacy Act (FERPA). Komar filed suit and the Superior Court of the County of San Bernardino ordered the school district to respond to Komar’s request. The school district appealed to the Court of Appeal in the Fourth Appellate District.

The question for the court is whether California’s state law making student’s expulsion records open for public review is contrary to FERPA. California law protects student records from public review, but it makes an exception for expulsion proceedings. According to California law, expulsion proceedings are to take place in public (unless the student requests otherwise) with the school board voting whether to expel. The school board is required to maintain an expulsion record that includes the reasons for expulsion, which may be reviewed by the public upon request. The opinion from the California attorney general also stated that FERPA does not preempt state law on the issue of disclosing expulsion records of students.

The court determined that the federal and state laws involving student records were in direct conflict because the federal statutes and regulations make special exceptions for expulsion records, thereby indicating that a blanket rule for disclosing all expulsion records is inappropriate under FERPA. When the federal and the state laws conflict, as in this suit, it is generally the case that the federal law will preempt the state law. Therefore, the appeals court overturned the order of the lower court to disclose the record.

The potential penalty for violating FERPA is the loss of federal funding. FERPA is enforced exclusively by the Department of Education, and an individual cannot maintain a private right of action for violating FERPA. Therefore, it is possible for a California school to release the expulsion information, but it is likely that the school will lose federal funds by adopting such a practice, even if it is mandated by California law.

Andrea Bell ( is general counsel for NASSP.

Copyright National Association of Secondary School Principals Mar 2003

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