Ratwik, Roszak & Maloney, P.A.

730 Second Avenue South, Suite 300

Minneapolis, Minnesota 55402
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RECENT DEVELOPMENTS AFFECTING YOUR SCHOOLS:

A CASE LAW UPDATE

Joseph J. Langel
jjl@ratwiklaw.com

SCHOOL LAW SEMINAR

October 10, 2014

I. EMPLOYEES CAN CHALLENGE PERFORMANCE REVIEWS THROUGH

THE MINNESOTA GOVERNMENT DATA PRACTICES ACT Schwanke v.
Dept of Administration, 851 N.W.2d 591 (Minn. 2014).

A. Facts and Procedural History: Todd Schwanke is a sergeant in the Steele

County Sheriffs Office. In 2012, he received a performance evaluation from the
Chief Deputy of the office, regarding his performance in 2011. The performance
evaluation rated Schwankes performance on 23 categories, asked for written
support for the ratings given, and allowed the rater to decline to rate Schwankes
performance in any category for which information was not available of that
would have been inappropriate. The Chief Deputy rated Schwankes
performance generally negative and Schwanke disagreed.

Schwanke wrote a letter to Steele County expressing his disagreement, and the
Sheriffs Office declined to make any changes to the evaluation because it was

NOTE: The purpose of this presentation, and the accompanying materials, is to inform you of
interesting and important legal developments. While current as of the date of presentation, the
information given today may be superseded by court decisions and legislative amendments. We
cannot render legal advice without an awareness and analysis of the facts of a particular situation. If
you have questions about the application of concepts discussed in the presentation or addressed in this
outline, you should consult your legal counsel. 2014 Ratwik, Roszak & Maloney, P.A.
 accurate and complete. Schwanke then appealed that decision to the Minnesota
Department of Administration in a letter that expressed the same reasons for
disagreement, as well as additional reasons for disagreement and evidence to
support these reasons. The Department declined to accept Schwankes appeal on
the basis that the Minnesota Government Data Practices Act (MGDPA) was
not the proper basis for disputing a performance evaluation. Schwanke appealed.

B. Legal Standards:

1. The MGDPA allows individual subjects of data to contest the accuracy

or completeness of the data. Minn. Stat. 13.04, subd. 4(a).

2. The Minnesota Administrative Procedure Act governs challenges to data

under the MGDPA, including the submission of evidence in challenging
government data. See Minn. Stat. 14.60.

C. Holdings and Rationale:

The Supreme Court determined that an opinion, where it was based on a fact,
could be challenged through a MGDPA challenge. The Supreme Court stated
that a subjective assessment, standing alone, is not objectively verifiable but
the basis for a subjective assessment[may be] a verifiable, falsifiable
statement of fact. That latter category is open to challenge under the MGDPA.
As it regards a performance evaluation, this means that a statement that an
employee has poor customer-service skills is unchallengeable as an opinion. But
if that opinion is based on specific examples, the employee is now allowed to
challenge the facts and circumstances of those examples.

Moreover, mere dissatisfaction with a subjective judgment or opinion cannot

support a challenge under the Data Practices Act. The data being challenged
must be of a kind that can be specifically contested with factual information.

The Supreme Court also determined that the starting point for an MGDPA
contested case hearing challenge was the determination by the Responsible
Authority regarding a specific item of data. In this case, Schwanke sought to
challenge several evaluation points that he had not objected to in his letter to the
County disagreeing with the evaluation. The Court determined that those points
could not be challenged because Schwanke had failed to challenge them to the
Responsible Authority. However, the Supreme Court approved of Schwankes
submission of evidence in the contested case hearing that had not been submitted
to the Responsible Authority. The Supreme court relied on the Administrative
Procedures Act to determine that the record in a contested-case proceeding is
not limited to the evidence disclosed prior to the appeal.

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 The Court explicitly express[ed] no opinion on these policy concerns other than
to say that nothing in our decision today precludes the Legislature from
responding by amending the Data Practices Act. It appears that, though the
Supreme Court understood the effects that its decision would have for
governmental employees, the Court felt bound by the statutory language of the
MGDPA. There will likely be an attempt to alter this language in the future.

This case presents some challenges for schools in that this process is not
superseded by collective bargaining agreements and any mechanisms contained
within them for challenging performance reviews. Rather, this process is in
addition to those potential methods. This has the potential to be used to
challenge decisions regarding termination or non-renewal of teachers, which are
based on factual statements. These challenges would be reviewed by an
Administrative Law Judge, who would exercise independent judgment about the
propriety of the decision, without deference to the decision of the Board. This
may involve presenting evidence that was not considered by the Board in making
its decision.

II. CONTRACTORS OF SCHOOLS MAY BE REQUIRED TO COMPLY WITH

THE MINNESOTA GOVERNMENT DATA PRACTICES ACT
Helmberger v. Johnson Controls, Inc., 839 N.W.2d 527 (Minn. 2013).

A. Facts and Procedural History: In 2010, ISD #2142 in St. Louis County
entered into two contracts with Johnson Controls for the construction of two
schools and the renovation of three others. Johnson Controls subsequently
subcontracted out the architectural services that were to be performed under the
contracts. Marshall Helmberger, the editor and publisher of Timberjay
newspapers, requested data under the MGDPA from Johnson Controls, including
information about the subcontracting. Johnson Controls denied the request.

Helmberger requested an advisory opinion from the Commissioner of

Administration regarding whether Johnson Controls was required to comply with
the MGDPA. In an Advisory Opinion, the Commissioner concluded that
Johnson Controls was required to provide a copy of the subcontract because it is
performing a governmental function for the District. When Johnson Controls
continued to refuse to provide the subcontract, Helmberger filed a complaint with
the Office of Administrative Hearings. After an evidentiary hearing, the
administrative law judge dismissed the complaint, concluding that Johnson
Controls was not performing a governmental function pursuant to the MGDPA.
The administrative law judge noted that architectural services were not
traditionally performed by this school district or school districts generally.

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 Helmberger appealed to the Court of Appeals, which held that Johnson Controls
had contracted to perform a government function within the meaning of the
MGDPA, and thus, was required to comply with the MGDPA to disclose its
subcontract. The Court of Appeals rejected Johnson Controls argument that the
MGDPA only applies to private parties that have received the contract notice
required by Minnesota Statutes Section 13.05, subd. 11(a).

B. Legal Standard:

If a government entity enters into a contract with a private person to perform

any of its functions, the government entity shall include in the contract terms that
make it clear that all of the data created, collected, received, stored, used,
maintained, or disseminated by the private person in performing those functions
is subject to the requirements of this chapter and that the private person must
comply with those requirements as if it were a government entity. Minn. Stat.
13.05, subd. 11(a).

C. Holdings and Rationale:

The Supreme Court declined to determine whether Johnson Controls was

performing a government function within the meaning of the MGDPA. Instead,
the Supreme Court focused on the plain language of the MGDPA and concluded
that subdivision 11(a) of Section 13.05 is simply a notice provision that
addresses the contractual terms that a government entity must include when
contracting with a private business to perform a government function. The
notice provision is meant to advise a private party that all data related to the
performance of the government function are subject to disclosure pursuant to the
MGDPA. Because the contracts between the school district and Johnson
Controls in this case did not contain any such notice provisions, the Supreme
Court reasoned that Johnson Controls did not have a duty to disclose the
subcontract information.

The Supreme Court relied on the absence of language in the MGDPA that
imposes any direct, affirmative obligations on private parties that enter into
contracts with government entities. Instead, the Supreme Court determined that
subdivision 11 of Section 13.05 imposes an obligation only on government
entities. In the absence of the contractual notice, the Supreme Court held, a
private party cannot be bound by the statute. In sum, Johnson Controls had
neither a contractual nor a statutory duty to abide by the MGDPA.

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 The Helmberger decision limits the reach of the MGDPA to private parties. The
decision makes it clear that private parties can only be bound by the requirements
of the MGDPA if a notice provision is included in the contract. While some may
argue that this decision requires government entities to include a notice provision
in all contracts, government entities are only required to include such a provision
when contracting with a private party to perform government functions. The
Supreme Court declined to define what constitutes a government function. As a
result, school districts should carefully consider whether the notice provision is
required before entering into a contract for which government functions may be
performed.

III. IT IS A VIOLATION OF THE FOURTH AMENDMENT TO SEARCH A

CELLPHONE WITHOUT A WARRANT Riley v. California, -- U.S. ---, 134 S.
Ct. 2473 (2014).

A. Facts and Procedural History: This case was actually two cases combined into
one. One case involved a man who was stopped while driving and did not have a
license. Police impounded his car and conducted an inventory search, during
which they found concealed weapons. The mans smartphone was seized and a
detective later looked through the cellphone searching for evidence of crimes.
Police found pictures and data connecting him to a shooting.

The other case involved a man who was observed apparently making a drug sale
in a car. Police arrested the man and seized his cellphone. While at the station,
the phone began ringing with the number identified as my house. Police used
the phone to determine the number, then searched the apartment associated with
that number, where they found drugs, guns, paraphernalia, and cash.

Both men challenged the polices use of their cellphones as violations of their
Fourth Amendment rights, which would result in the suppression of the evidence
obtained as a result of the information on the cellphones. The Supreme Court
eventually combined the cases.

B. Legal Standards:

The Fourth Amendment protects against unreasonable searches and seizures.

This requirement typically requires police to obtain a warrant to conduct a
search, unless certain exceptions apply.

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 C. Holdings and Rationale:

In a unanimous opinion, The Supreme Court made one overarching statement to

law enforcement regarding investigation of an arrested persons cellphone: get a
warrant. The Court recognized the propensity for cellphones to contain a great
variety of information about all facets of a persons life. But that logic could
potentially go beyond the cellphone, into home computers and other devices that
contain digital data, which may now be seen as needing a slightly heightened
justification for a search.

The direct application of this case to schools is somewhat limited, in that school
administrators are unlikely to be searching a students cellphone incident to an
arrest. However, the logic of needing a bit more reason to search a students
electronic data may nonetheless be a guidepost for administrators in determining
whether and how to conduct a search.

IV. ADMINISTRATOR VIOLATED FOURTH AMENDMENT, AND WAS NOT

PROTECTED BY QUALIFIED IMMUNITY, IN SEARCHING A STUDENTS
CELLPHONE UPON A REPORT OF DRUG USE Gallimore v. Henrico Cnty.
Sch. Bd., 3:14CV009, 2014 WL 3867557, --- F. Supp. 2d ---- (E.D. Va. Aug. 5, 2014).

A. Facts and Procedural History: The School received reports from two parents
that a long-haired student had smoked marijuana on a Hermitage High School
bus that morning. That afternoon, two administrators brought the plaintiff
student to one of their offices and had him empty his pockets. One of the
administrators began searching the student, including patting down his person
and searching his backpack, shoes, [] pockets, Vaseline jar, a sandwich wrapper,
and [a] cell phone. The administrators did not find any illicit substances and
sent him back to class.

The student, through his parents, filed a suit against each administrator and
against the school board. The student claimed assault, battery, and violations of
the Fourth Amendment of the United States Constitution as to both
administrators and the school board.

B. Legal Standards:

1. Students enjoy a Fourth Amendment right to be free from unreasonable

searches and seizures by school officials. New Jersey v. T.L.O., 469 U.S.
325 (1985). In determining whether a search is reasonable, the Court
must consider the scope of the legitimate expectation of privacy, the
character of the intrusion, the nature and immediacy of the governmental

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 concern as well as the efficacy of the means employed for dealing with it.
Vernonia School District 47J v. Acton, 515 U.S. 646 (1995).

2. A school official is protected from liability if a reasonable [official]

possessing the same information could have believed that his conduct was
lawful. Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir.1991) (citing
Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034 (1987)).

C. Holdings and Rationale:

This case is in line with the Supreme Courts holding in Riley, discussed above.
But the opinion in this case does not rely on Riley, despite having been issued
after Riley.

Rather, this case relies on T.L.O., which requires that the search be justified both
at its inception and in the way it was conducted. Pursuant to that case, the
search as actually conducted must be reasonably related in scope to the
circumstances which justified the interference in the first place. At a school,
that means there must be a moderate chance of finding evidence of wrongdoing.

In the facts of this case, this means that the physical searches of the students
pockets, backpack, shoes, Vaseline jar, and sandwich bag were all reasonable,
because drugs could have been hidden in those places. But the search of the
cellphone was not reasonable because there is no chance of finding drugs in the
virtual space of the cellphone.

Moreover, the doctrine of qualified immunity, which protects a government

official from liability if a reasonable official in the same circumstances could
have believed his conduct was lawful. Here, the court determined that, even in
the school environment, [n]o reasonable school administrator could believe that
searching a students cell phone would result in finding marijuana.

Searches must be justified at their inception and reasonable in scope. Application

of that standard means that searches of cellphones is permissible in only very
limited circumstances.

V. APPLICATION OF DRESS CODE TO PROHIBIT CONFEDERATE FLAG

SYMBOLS WAS PERMISSIBLE FOR ADMINISTRATORS - Hardwick ex rel.
Hardwick v. Heyward, 711 F.3d 426 (4th Cir. 2013) cert. denied, 134 S. Ct. 201,
(2013).

A. Facts and Procedural History: A middle-school student in eastern South

Carolina repeatedly wore shirts with confederate flags and symbols, which the

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 administrators required her to remove. These shirts included slogans like
Southern Chicks and Dixie Angels, and all included the image of the
confederate flag. The students parents sent a letter to the superintendent stating
that they believed the shirts represented their heritage and beliefs. The School
Board responded that the area had a history of racial tension and that
administrators would continue to prohibit that symbol at schools.

The student moved on to high school, but continued to wear these shirts and
continued to be disciplined for it. The student and her parents eventually tried to
have the school board to change the policy relative to the confederate flag, but
were unsuccessful. They eventually filed a federal civil rights lawsuit.

B. Legal Standards:

1. A school district may limit or discipline student expression if school

officials reasonably conclude that the expression will materially and
substantially disrupt the work and discipline of the school. Tinker v. Des
Moines Indep. Comm. Sch. Dist., 393 U.S. 503 (1969).

2. School officials may regulate such speech even before it occurs, as long as
they can point to facts which might reasonably have led [them] to
forecast such a disruption. Tinker, 393 U.S. at 514, 89 S.Ct. 733. School
officials may not, however, punish speech based on only an
undifferentiated fear or apprehension of disturbance or a mere desire to
avoid the discomfort and unpleasantness that always accompany an
unpopular viewpoint. Id. at 508, 509, 89 S.Ct. 733.

C. Holdings and Rationale:

The court noted that there was a significant history of racial tension in the area.
This included student-led trouble making when a white student and a black
student attended prom together, and a later incident in which two white students
burned a traditionally African-American church in the area. More specifically,
the court noted at least two recent incidents in which disruptions were caused by
displays of the confederate flag. These facts were key to the Courts analysis.

The previous incidents came into play because the student argued that the shirts
she wore never caused any disruption. But the Court looked at the history of
racial incidents and determined that it was reasonably likely that such incidents
could happen at the school if she continued wearing them. Because it was a
reasonable forecast of a disruption, the school was allowed to prevent the
confederate flag from being displayed.

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 Administrators should be wary of preventing speech in the form of particular
clothing. However, when there is evidence that a disruption could result from
the display of a certain symbol or item of clothing, administrators are allowed to
prevent that from being displayed in school.

D. Extension

In another case, the Ninth Circuit Court of Appeals discussed a similar issue:
students who wore American flag shirts on the day of a Cinco de Mayo
celebration at the school. Dariano v. Morgan Hill Unified Sch. Dist., 745 F.3d
354 (9th Cir. 2014). The school had a history of violence among students, some
of which was gang-related or racial in nature. Two students were allowed to
continue in school that day because the administrators deemed the symbols to be
less prominent, but others with more prominent symbols were required to turn
their shirts inside out or go home, but the students were not disciplined. The
students were later the subject of threats of violence.

The students filed suit for violations of free speech, equal protection, and due
process provisions of the Federal and California Constitutions. The Court
determined that the school had not violated these protections, because of the
reasonable likelihood of disruption based on past events.

The Court noted the problem of the hecklers veto the idea that the response
to the speech might cause the speech to be a concern rather than the content of
the speech itself. Despite that, the Court declined to find a constitutional
violation. However, three judges of the circuit dissented from the denial of a
rehearing and reconsideration of the opinion, noting that the reaction of other
students should not be a basis for suppressing otherwise legitimate speech.

While the speech in Hardwick could be seen as offensive or inciting a reaction,

that is hardly the case for an American flag. Nonetheless, the possibility, within
the circumstances of the school, that there could be a disruption was sufficient
for the school to justify taking action.

VI. TOWN BOARD DOES NOT VIOLATE ESTABLISHMENT CLAUSE BY

PRAYING BEFORE MEETINGS Town of Greece v. Galloway, 572 U.S. ---, 134
S. Ct. 1811 (2014).

A. Facts and Procedural History: A town in upstate New York State began each
board meeting with a prayer given by clergy from any local congregation. The
majority of the local congregations are Christian, so most of the prayers were,
too. The practice was intended to replicate one board members experience in

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 the state legislature. The board did not review the prayers, or provide guidance
as to subject, prior to them being given.

Two citizens of the town complained that the prayers lacked diversity, and the
board reached out to religious people of other beliefs. The citizens filed suit,
claiming that the prayers constituted an impermissible establishment of religion.

B. Legal Standards:

1. The legal standards behind this case are difficult to identify. The court did
not cite the most common formulation of the test for an establishment
clause violation, from Lemon v. Kurtzman.

2. The court focused on identifying whether the practice was analogous to

Marsh v. Chambers, which approved legislative prayer.

C. Holdings and Rationale:

The Court determined that this was like the legislative prayer allowed in Marsh.
The Court noted that the board did not discriminate against minority religious,
despite the bulk of the prayers being Christian in nature. The Court further noted
that the prayers were not coercive for participants.

Justice Kennedy, writing for the majority, noted the concern with turning
legislative bodies into prayer police, censoring religious beliefs that might be
expressed before them. A potential concern might be found where there was a
patter of prayers that denigrate, proselytize, or betray and impermissible
purpose, but the content of a particular prayer will not likely establish a
constitutional violation. Further concerns might be found if the prayers were
chosen for their viewpoints or if the speech was predetermined.

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 This presents a challenge for schools. The Court clearly approves of the
expression of religion in public life in some sense, but provides little guidance
for how to balance that expression against the prohibition on establishment of
religion in government activity. To complicate matters, the Court denied the
opportunity to hear a case involving a school near Milwaukee that held its
graduation ceremony in a church. Elmbrook School District v. Doe, 573 U.S. ---
(2014). Justice Scalia, joined by Justice Thomas, dissented from the denial of
review. They argued that Town of Greece represented a disposal of principles
like the Lemon v. Kurtzman test regarding whether an expression of religion
violated the establishment clause. Justice Scalia highlighted the facts that the
church was chosen as a venue only because of the amenities it offered relative to
other options and referred to the previous precedents as infinitely malleable.
Ultimately, while this opinion was a dissent from a denial of review, meaning the
appellate court opinion is the final statement on the case, it is likely to define the
conversation in the future.

VII. EMPLOYEES TESTIMONY UNDER SUBPOENA WAS PROTECTED FIRST

AMENDMENT SPEECH Lane v. Franks, --- U.S. ---, 134 S. Ct. 2369 (2014).

A. Facts and Procedural History: Edward Lane, director of a youth program at a

college in Central Alabama, did an audit of program expenses and found that an
elected representative who was on the payroll was being paid but not working.
The elected representative was terminated and later convicted of fraud. Lane
testified under subpoena about these events. The president of the college
subsequently terminated 29 employees, including Lane. However, the president
then rescinded all but 2 of them, including Lane. Lane filed suit, arguing that his
First Amendment rights had been violated through retaliation.

B. Legal Standards:

1. As a general rule, district employees, as citizens, have the right to

personally comment on matters of public importance without restriction or
reprisal by the district. Borough of Duryea, Pa. v. Guarnieri, 131 S.Ct.
2488, 2493 (2011); see also Pickering v. Board of Education, 391 U.S.
563, 574 (1968).

2. There is a two-step inquiry into whether a public employees speech is

entitled to protection. The first requires determining whether the
employee spoke as a citizen on a matter of public concern. If the answer is
no, the employee has no First Amendment cause of action based on his or
her employers reaction to the speech. If the answer is yes, then the
possibility of a First Amendment claim arises. The question becomes

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 whether the relevant government entity had an adequate justification for
treating the employee differently from any other member of the general
public. Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951 (2006)
(citations omitted).

C. Holdings and Rationale:

The Court, in an unusual unanimous opinion, determined that Lanes testimony

was protected speech. The Court characterized this as the quintessential
example of citizen speech on a matter of public concern. Such speech is
protected by the First Amendment. Moreover, the Court noted that speech by
public employees on subject matter related to their employment holds special
value precisely because those employees gain knowledge of matters of public
concern through their employment.

The implications of this case for schools are somewhat unclear, in practice. An
employer has some rights to discipline employees for speech, but the exercise of
those rights must be exercised cautiously in order to comply with the Courts
interpretation of the two-step inquiry regarding public speech of public
employees.

VIII. STATUTORY RIGHT OF TEACHER DISPLACED FROM EDUCATIONAL

COOPERATIVE TO A POSITION WITH DISTRICT EXITING
COOPERATIVE Doran v. Indep. Sch. Dist. No. 720, 831 N.W.2d 1, (Minn. 2014).

A. Facts and Procedural History: ISD #720 had been a member of the Carver-
Scott Educational Cooperative, through which it purchased educational services,
including services of an Area Learning Center (ALC). The ALC employed
Scott Doran as a social studies teacher. In early 2012, the district decided to
establish its own ALC beginning with the 2012-2013 school year, so it would not
need ALC services of the cooperative.

The cooperative wrote a letter to Doran informing him that he was being placed
on an unrequested leave of absence because of a discontinuation of his position,
lack of pupils, and financial limitations. The letter also indicated that the leave
resulted from the district leaving the cooperative. A second letter two days later
stated that the first letter accidentally omitted a not in the sentence relating
Dorans leave to the district exiting the cooperative. The accidental
characterization of the omission of the not was a point of contention between
the parties, though it ultimately did not matter.

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 Doran asserted a statutory right to social studies teaching positions that were
being posted for the districts new ALC, but was told he did not have any rights
to those positions. Instead, he was welcomed to apply, though he was not
selected. Doran challenged the decision by certiorari to the Court of Appeals.

B. Legal Standards:

1. When a member of a cooperative withdraws, written notification must be

provided to all teachers. Minn. Stat. 123A.33, subd. 4.

2. When a teacher employed by a cooperative is placed on an unrequested

leave of absence in the same year that notifications of withdrawal are
required, and the withdrawing district provides essentially the same
instruction provided by the cooperative to pupils enrolled in the
withdrawing district, the teacher shall be appointed by the withdrawing
district to an available teaching position. To qualify, the position must
be in a field of licensure in which pupils enrolled in the withdrawing
district received instruction from the cooperative, and within the
teachers field of licensure. Minn. Stat. 123A.33, subd. 8.

C. Holdings and Rationale:

The district argued that its withdrawal from the cooperative and Dorans
placement on leave were not related. The district further argued that, for the
statutory right to employment with the withdrawing district to apply, there must
be a causal connection between the withdrawal and the placement on leave.
Moreover, the district argued that, because it still purchased some educational
services from the cooperative so that the withdrawal was only partial, the
statutory right did not apply.

The Court of Appeals rejected all of these arguments.

The Court held that there is no causation element in the provision of the statute
creating the statutory right to employment. The Court noted that another
provision of the statute specifically included a causation element, which
underscored the lack of that language in the leave provision.

The Court also held that whether the withdrawal was partial or total, the statutory
right for employment with the withdrawing district still applied. The Court
rejected reliance on a 1994 opinion that required a complete withdrawal to
implicate the statutory right to employment. This was because the statute
defining withdrawal was amended in 1995 to include partial withdrawals.

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IX. OTHER LEGAL NOTES

A. Charter Schools may not operate Alternative Learning Programs.

Minnesota Transitions Charter Sch. v. Commr of Minnesota Dept of Educ.,

844 N.W.2d 223 (Minn. Ct. App. 2014), review denied (May 28, 2014).

Minnesota Transitions Charter School was approved on a probationary basis by

MDE to set up an Alternative Learning Program (ALP) in 2002, but continued
to be funded for this program for over a decade. MDE began to question,
internally, whether the Charter School could operate an ALP, and eventually
determined that there was no statutory basis for it. The charter school appealed.

The Minnesota Court of Appeals determined that MDE was correct. The Court
noted that the relevant statutory language provided that [a] district may establish
an area learning center, alternative learning program, or contract alternative in
accordance with sections 124D.68, subdivision 3, paragraph (d), and 124D.69.
Minn. Stat. 123A.05, subd. 1(a). MDE acknowledged that it should have
provided guidance on this subject before funding the program for a decade, but
the Court ultimately determined that based on the plain language of the quoted
statute and others in the same chapter, MDE was correct.

B. [C]hildish and unprofessional behavior is not Intentional Infliction of

Emotional Distress.

Albert v. Indep. Sch. Dist. No. 709, A12-1516, 2013 WL 1500986 (Minn. Ct.
App. Apr. 15, 2013).

A student alleged that her hockey coach harassed her, including not talking to
[her], telling her teammates not to talk to her, embarrassing and verbally
attacking her in front of others, excluding her from team functions, and benching
her during games. The court referred to this behavior as childish and
unprofessional, but also noted that it is not the type of extreme or egregious
behavior that would expose a school to liability for intentional infliction of
emotional distress.

RRM: 190879

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