FindACase | Derichs v. AT&T Services, Inc.
Derichs v. AT&T Services, Inc.
In this case, plaintiff seeks review of the denial of his claim for disability benefits under an employee benefits plan administered by defendant. Plaintiff asserts his claim in this case pursuant to the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. In accordance with the parties' agreement that this case may be decided on the basis of the administrative record considered by the plan's claims administrator, the parties have filed cross-motions: a motion for summary judgment by plaintiff (Doc. # 18) and a motion for judgment on the administrative record by defendant (Doc. # 16). As more fully set forth below, the Court concludes that plaintiff's claim for benefits must be remanded for a new determination by the claims administrator, pursuant to the Court's interpretation of the governing provision of the benefits plan. Thus, the Court grants in part plaintiff's motion to that extent, and it denies defendant's motion.
Plaintiff was a participant in an employee benefit plan administered by defendant. Claims under the plan were administered by Sedgwick Claims Management Services, Inc. (“Sedgwick”), to whom the plan granted discretion to interpret the plan and to determine entitlement to benefits thereunder. Plaintiff ceased working in January 2015, and shortly thereafter he applied for short-term disability benefits under the plan. The claims administration process ran its course, and in December 2015 plaintiff's claim was finally denied. Plaintiff subsequently filed the instant suit under ERISA.
On March 29, 2018, the Court issued an order in which it noted that the parties, in their briefs relating to the pending motions, disputed the proper interpretation of the plan's definition of “totally disabled, ” although they had not cited any relevant authority on that issue. In light of the limited analysis provided by the parties and because the interpretation of that provision could be dispositive, the Court ordered the parties to submit supplemental briefs on the issue. The Court has now considered the parties' additional arguments.
In denying plaintiff's claim, Sedgwick and defendant determined that plaintiff was not totally disabled under the plan. The plan defined totally disabled in relevant part as follows: “You are considered Totally Disabled when, because of illness or injury, you are unable to perform all of the essential functions of your job . . . .” This definition---“unable to perform all of the essential functions”---could be interpreted in two different ways. First, this language could mean that, to show that she is totally disabled, a claimant must show that she cannot perform any of her job's essential functions, as she would not be disabled if she could perform some (but not “all”) of the essential functions. That is the interpretation espoused by defendant in this case. Second, this language could mean that a claimant is disabled if she cannot perform any particular essential function of her job, as she would then be unable to perform “all” of the essential functions. In this second interpretation, the “un-” of “unable” serves as a negation of the ability to perform all essential functions---if there is one that cannot be performed, then the claimant cannot perform all of those functions. Plaintiff argues in favor of this second interpretation. The Court concludes that this language, on its face, could reasonably be interpreted in either fashion, and it was this ambiguity that caused the Court to order the additional briefing.
Because this plan gives the administrator discretion to interpret its terms and determine eligibility for benefits, the Court would ordinarily apply a deferential standard of review and uphold a reasonable interpretation made by the administrator. See Conkright v. Frommert, 559 U.S. 506, 512 (2010). In its original briefs on the pending motions, defendant argued that the administrator applied the first alternative interpretation set forth above. In its supplemental briefing, however, defendant has conceded that it is “unclear from the record” which interpretation Sedgwick applied in denying plaintiff's claim. The Court agrees with defendant that although the various claim denials quote the plan's definition of “totally disabled, ” they do not indicate which interpretation was being applied in deciding plaintiff's claim. Defendant argues that its presently-espoused interpretation is reasonable, and that the use of it would not be arbitrary and capricious. Defendant does not argue, however, that the administrator applied a particular interpretation at the time of the denial to which this Court could afford deference. Nor does defendant argue that the administrator should have another opportunity to interpret the plan definition. Accordingly, because there is no interpretation to which it may defer, the Court proceeds to interpret that plan definition, for purposes of this plaintiff's claim, as a matter of law.
In its supplemental briefs, defendant mainly argues that plaintiff was not disabled under either alternative interpretation. In its only argument addressing the proper interpretation of the definition, defendant merely cites two circuit court cases that support its interpretation; notes that a district court disagreed with those two decisions; and urges this Court to follow the two circuit courts. Defendant has not analyzed the reasoning of those courts; nor has defendant offered any reasons why its interpretation should be favored. In his supplemental brief, plaintiff has not analyzed defendant's cases or cited any additional authority. Plaintiff does argue that its interpretation is more reasonable because if an employee is unable to perform any particular function that is essential to her job, then she cannot perform the entire job and may be subject to dismissal---in which case, the employee should be considered disabled.
The Court agrees the plaintiff's interpretation makes the most sense, for the reasons argued by him. The definition of total disability does not refer to all of the employee's job functions, but instead turns on the performance of the essential functions of that job. Thus, there is no danger that a person will be denied benefits simply because she can perform one trivial job function (such as punching her time card). Similarly, at the other extreme, there is no danger that a person will be considered totally disabled even though she can perform all essential functions but cannot perform some other trivial function. By referencing the essential functions of the job, the standard seeks to determine whether the employee can, for practical purposes, continue to do her job. If any one essential function cannot be performed, the employee's ability to perform the job as a whole is defeated. Thus, plaintiff's interpretation, making an employee disabled if some but not all essential functions can be performed, is more reasonable and is more in keeping with the plan's clear purpose of providing benefits to those who can no longer perform their jobs.
The Court's interpretation is furthered supported by application of contra proferentem, the rule of construction under which ambiguities are construed against the drafter of the language at issue and thus in favor of the insured. See Miller v. Monumental Life Ins. Co., 502 F.3d 1245, 1253 (10th Cir. 2007) (rule applies in reviewing an ERISA plan de novo).
Finally, contrary to defendant's statement in its initial supplemental brief, the weight of authority supports the Court's interpretation. Defendant relies on the unpublished case of Crossman v. Media General, Inc., 9 Fed.Appx. 147 (4th Cir. 2001) (unpub. op.), in which “disability” was defined to mean “the inability . . . to perform all of the customary duties of [the] position.” See Id. at 150. The court held that the plan administrator had not abused its discretion in denying a claim because the employee could perform some of his duties, thereby giving the plan language “its plain meaning.” See Id. at 151. This case is distinguishable because the plan definition turned on the performance of “customary” duties, and thus did not focus on the performance of the essential or core functions of the job. In addition, the Court does not agree with the Crossman court that such language is “plain” and not subject to differing interpretations.
Defendant also relies on Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d 262 (5th Cir. 2004), in which the policy provided for benefits for one “unable to perform all of the material and substantial duties of his occupation.” See Id. at 270. The court held that the plan fiduciary applied the “legally correct interpretation” requiring the employee to show that she could not perform any of the material and substantial duties. See Id. Again, however, this Court does not agree with the Ellis court that such an interpretation follows from “the plain wording” of the plan, see Id. at 271, given the ambiguous phrasing. Moreover, key to the Ellis court's ruling was the fact that a contrary interpretation would conflate the disability provision with the plan's “partial disability” provision, which applied if the employee was able to perform “one or more, but not all, of the material and substantial duties” of his occupation. See Id. at 271-72. The Court concedes that, if the plan in the present case included a partial disability provision that applied if the employee could perform some but not all of her essential job functions, that fact would support interpreting the total disability definition to require an inability to perform any essential function, in order to avoid making the partial disability provision superfluous. Defendant's plan, however, does not contain any such partial disability provision,  and Ellis therefore is not particularly persuasive.


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Justia › US Law › US Case Law › US Supreme Court › Volume 130 › Oregon Ry. & Nav. Co. v. Oregonian Ry. Co., Ltd.
Oregon Railway and Navigation Company v.
In the United States, a corporation can only have an existence under the express law of the state by which it is created, and can exercise no power or authority which is not granted to it by the charter under which it exists, or by some other legislative act.
When a statute makes a grant of property, powers, or franchises to a private corporation or to a private individual, the construction of the grant in doubtful points should always be against the grantee and in favor of the government, and this general rule of construction applies with still greater force to articles of association organizing a corporation under general laws.
The power to lease a railroad, its appurtenances and franchises, is not to be presumed from the usual grant of powers in a railroad charter, and unless authorized by legislative action so to do, one company cannot transfer them to another company by lease, nor can the other company receive and operate them under such a lease.
The Constitution and general laws of Oregon do not authorize a railroad corporation organized under the laws of the state to take a lease of a railroad and franchises.
The general laws of Oregon confer upon a foreign corporation no right to make a lease of a railroad within the state, but only the right to construct or acquire and operate one there.
When a state constitution contains a general provision that corporations shall not be created by special laws, but may be formed under general laws, no private corporation can be created thereafter until such general law has been enacted.
When a corporation is organized through articles of association entered into under general laws, the memorandum of association stands in the place of a legislative charter insofar that its powers cannot exceed those enumerated therein, but powers enumerated and claimed therein which are not warranted by statute are void for want of authority. Thomas v. Railroad Co., 101 U. S. 71, explained.
The use of the words "successors or assigns" in a proviso attached to a statute making specific grants to a corporation does not necessarily imply that the corporation can transfer all its property and its franchisee to another corporation, to be exercised by the latter.
A provision in a general act for organizing corporations for the purpose of navigating streams, with power to construct railroads where portage is necessary, that a corporation organized under it shall not lease such a railroad, does not imply that without such a restraint the corporation could make such a lease.
A provision in a general act for the organization of corporations that a corporation organized under it may authorize its own dissolution and the disposition of its property thereafter does not authorize such a corporation, not dissolving but continuing in existence, to dispose of all its corporate franchises and powers by lease.
The operation of a railroad and payment of rent for three years by a lessee under a lease of it for ninety-six years, which was executed in violation of the corporate powers both of the lessor and of the lessee, does not so far execute the contract of lease by part performance as to estop the lessee from setting up its illegality in an action at law to recover after accruing rent.
This is a writ of error to the Circuit Court of the United States for the District of Oregon.
The Oregonian Railway Company, Limited, recovered a judgment against the Oregon Railway and Navigation Company for the sum of $68,131, on a contract for the lease of a railroad owned by the plaintiff in the suit, which had been leased to and used by the defendant. This sum was for the semiannual payment of rent, in advance, for the half year beginning May 15, 1884.
Parliament of 1862, 1867, and 1877, and in the memorandum of association it is declared that its principal office and place of business is at Dundee. The defendant in the action, the Oregon Railway and Navigation Company, was organized under articles of incorporation filed June 13, 1879, according to the statutes of Oregon on that subject, and its principal office is declared in those articles to be at Portland, Oregon. After many amendments to the original petition and still more numerous amended answers, the case came to a hearing before the court on a demurrer to the answer and a motion to strike it out. This motion was denied, but the demurrer was sustained, and, as the pleadings were supposed to present all the issues that could arise in the case, a judgment was rendered for the plaintiff, to review which this writ of error is prosecuted. 22 F. 245 and 23 F. 232.
"First. The building, constructing, reconstructing, equipping, owning, operating, leasing, or selling, transferring, or disposing of, or purchasing, or otherwise acquiring, holding, and operating, or otherwise using, working, or dealing in all or any such railway or railways, railroad or railroads, in the State of Oregon and the Territory of Washington, in the United States of America, or in either of them, or between such points in said state or territory or elsewhere in North America as may from time to time be resolved or determined upon by said company, and the carrying of passengers, goods, and minerals, and all other traffic and freight on, and the doing and performing of all other acts, deeds, and other operations connected with, railways and railroads in the said state and territory, or either of them, or elsewhere in North America. "
on the shores of the Pacific Ocean, all as may from time to time be determined by actual surveys; as also to purchase, build, construct, own, equip, and operate, or to enter into agreements to run over or to lease (1) any line or lines, branch or branches, of railway or railways, railroad or railroads, that may connect with or become attached to, or meet or become a part of, the said main line or its main branch, or any of its branches hereinbefore designated; or (2) such other main or branch line or lines, or extensions of any railway or railways, railroad or railroads, made in connection with this company's main line, or of any of its branches, or separate and distinct therefrom, all in such manner of way or form, and on such terms, as said company shall from time to time deem advisable and for its interests, and the doing and performing of all other operations connected with said designated railway or railways, railroad or railroads, or branches thereof, or in connection with other railways of a similar or different nature, the doing and performing of which this said company shall at any time deem advisable and for its interests in the carrying out of its business."
"Third. The building, constructing, purchasing, or otherwise acquiring, holding, equipping, owning, and operating, or the leasing and operating, or the leasing, equipping, and operating, or the selling, transferring, or otherwise disposing of, and the working and using of any other railway or railroad, or of any wharves, jetties, steamboat, or steamship, stage, or of any canals, locks, bridge, day road, plank road, turnpike, hack, truck, or express lines, or any other line, lines, or means for the transportation of freight or passengers, or either or both, now constructed or operated in whole or in part, or which may be hereafter constructed or operated in whole or in part, in either of the said States of Oregon, California, or Nevada, or said territories of Washington or Idaho, and that whether, in connection with or separate and distinct from, and as line or means independent of, said railway or railways, railroad or railroads so to be built, constructed, purchased, owned, equipped, or operated as aforesaid by this company."
countries to do business in that state upon complying with certain requirements. On this averment no issue is raised.
"that upon the execution of said indenture of lease the said defendant entered into possession of said demised property, and has continued in the enjoyment of the same to the present time, but that on the 15th of May, 1884, the defendant, pretending that neither it nor the plaintiff was authorized or empowered by law to enter into said indenture of lease, tendered and offered to restore possession of said demised property to plaintiff in its then condition,"
and, disavowing the obligation of the lease, refused to pay any further rent, wherefore the plaintiff prays judgment for the sum of $68,131.
The substance of the numerous answers and amended answers is that the defendant denies that the plaintiff has any corporate existence; avers that it had no power or authority to make the contract or lease as stated in the petition, and that the contract, although signed by the president of the defendant company, with the seal of that company attached, and the signature of the secretary, by order of its board of directors, is also without legal authority, and is not binding upon the defendant. In fact, the essence of the defense and of the whole controversy is whether these companies had power under their organization as corporations to make the contract of lease which is the foundation of this action.
time it disavowed the obligatory force of the contract, and offered to return and deliver up to the plaintiff all the property it held under the lease.
when it was received, but this is denied in the answer, and, as no proof was taken in regard to that fact, it can make no figure in the case as presented to this Court.
Second whether the Oregon Railway and Navigation Company, the defendant in the action, organized under the laws of the State of Oregon, had the legal capacity and lawful power to make said lease on its part.
Although the lease itself, which is the foundation of this action, is not found in the pleadings nor in the record, the statements in regard to it, made by the petition, amended petition, and answers, leave no question as to its nature or character so far as it affects the two questions here suggested.
exclusive privileges, often without due consideration and under the influence of improper motives, frequently led to bad results.
"Corporations may be formed under general laws, but shall not be created by special laws except for municipal purposes. All laws passed pursuant to this section may be altered, amended, or repealed, but not so as to impair or destroy any vested corporate rights."
Outside of the powers conferred and the privileges granted to these organizations by the statutes under which they exist, they are in all the states of the Union which, like Oregon, have the common law as the foundation of their jurisprudence, governed by that common law, and it is the established doctrine of this Court, and, with some exceptions, of the states in which that common law prevails, as well as of Great Britain, from which it is derived, that such a corporation can exercise no power or authority which is not granted to it by the charter under which it exists, or by some other act of the legislature which granted that charter.
This proposition has been before this Court more than once in recent years. It was very fully considered in Thomas v. Railroad Co., 101 U. S. 71, which resembled the case before us in several important features.
took control of the property and used it until 1867, when they were served with a notice by the lessor terminating the lease. A suit was brought to recover the damages mentioned in the contract, which came from the Circuit Court of the United States for the Eastern District of Pennsylvania to this Court, where it was very elaborately argued and received the earnest consideration of the Court, as may be perceived from the report of the case. The opinion, which was concurred in by all the judges who sat in the case, contains a full review of the decisions of the English courts on the subject discussed, and also of previous decisions of this Court.
"That it shall be lawful for the said company at any time during the continuance of its charter, to make contracts and engagements with any other corporation, or with individuals, for the transporting or conveying any kinds of goods, produce, merchandise, freight, or passengers, and to enforce the fulfillment of such contracts."
But the Court said that it was impossible under any sound rule of construction to find in this language a permission to sell, lease, or transfer to others the entire railroad and the rights and franchises of the corporation.
"The broad doctrine was established that a contract not within the scope of the powers conferred on the corporation cannot be made valid by the assent of every one of the shareholders, nor can it by any partial performance become the foundation of a right of action. "
Reference was also made in the same opinion to the case of The York & Maryland Line Railroad Co. v. Winans, 17 How. 30, which held that a corporation which has undertaken to construct and operate a railroad cannot, by alienating its right to use, and its powers of control and supervision, avoid the responsibility that it assumed in accepting the charter. The Court said: "The corporation cannot absolve itself from the performance of its obligations without the consent of the legislature." To this effect were cited Beman v. Rufford, 1 Sim. (N.S.) 550, and Winch v. Birkenhead & Lancaster Railway Co., 6 Jurist 1035, 13 Eng. L. & Eq. 506.
Afterwards, in Green Bay & Minnesota Railroad v. Union Steamboat Co., 107 U. S. 98, the case of Thomas v. Railroad Co., supra, was referred to with approbation.
"We think it may be stated as the just result of these cases, and on sound principle, that unless specially authorized by its charter or aided by some other legislative action, a railroad company cannot, by lease or any other contract, turn over to another company for a long period of time its road and all its appurtenances, the use of its franchises, and the exercise of its powers, nor can any other railroad company, without similar authority, make a contract to receive and operate such road, franchises, and property of the first corporation, and that such a contract is not among the ordinary powers of a railroad company, and is not to be presumed from the usual grant of powers in a railroad charter."
It may be considered that this is the law of the State of Oregon except as it has been altered or modified by its constitution and statutes.
"Whenever three or more persons shall desire to incorporate themselves for the purpose of engaging in any lawful enterprise, business, pursuit, or occupation, they may do so in the manner provided in this act."
Provision is then made for the manner in which these persons shall constitute themselves a corporation by filing articles of association, acknowledged before a proper officer, in the office of the Secretary of State and in that of the clerk of the county where the business is to be carried on. What these articles shall contain is specified with some particularity. But title 2 of the same chapter is more important in regard to the matter at issue, because it relates, among other things, to corporations which are organized for the construction of railroads. The mode of their formation is the same as that of those coming under title 1, but the declaration of the powers which may be exercised by railroad corporations may become important in the consideration of the present case.
"that any foreign corporation incorporated for the purpose of constructing, or constructing and operating, or for the purpose of, or with the power of, acquiring and operating, any railway, . . . shall, on compliance with the laws of this state for the regulation of foreign corporations transacting business therein, have the same rights, powers, and privileges"
as a domestic corporation formed for such purpose, and no more.
When we have found, therefore, what powers were conferred by the laws of Oregon on the defendant corporation in this case, we shall also have determined that the powers of the plaintiff corporation were no greater, with regard to the same subject matter, so far as the statutes are concerned, except as it may be shown that other powers are given by some express statute.
the plaintiff, and the articles of association made under the laws of Oregon by the defendant, both contain declarations of the powers of these companies, and of each of them, to buy or sell or lease railroads. The only question, therefore, to be considered is whether this declaration of power is authorized by the laws of Oregon.
It is argued that the articles of association under the Oregon law, and the memorandum of association under the Companies' Acts of Great Britain, are themselves the equivalent of an act of incorporation by the legislature, and that whatever is found as a grant of power or description of the purpose of the company set forth in such articles or memorandum is tantamount to a legislative act. A phrase in the opinion of the Court in Thomas v. Railroad Co., supra, is cited as supporting this proposition, namely: "The memorandum of association, as Lord Cairns said, stands in place of a legislative charter." But what was meant, both by Lord Cairns and by this Court, was that anything not claimed, granted, or described in such instrument in relation to the powers and business of the corporation could not be held to be a part of them by construction -- in other words, that its powers could not exceed those enumerated therein. It was necessarily implied in such a remark that anything in such articles or memorandum not warranted by the statutes in question, authorizing the formation of corporate bodies, was void for want of authority.
Of course, any authority for the exercise of corporate powers derived from the laws of Oregon must be in accord with the constitution of that state and its statutes upon that subject. The constitutional provision above quoted, that corporations shall not be created by special laws, but may be formed under general laws, implies that no private corporation could be created thereafter until such general law had been enacted, and that it thereupon became the fundamental law of the state in regard to all corporations formed under it. It is idle to say, therefore, that any corporation could assume to itself powers of action by the mere declaration in its articles or memorandum that it possessed them.
referred to concerning incorporation, enacted in accordance with that constitutional provision, and do not find any express authority for a railroad company to lease its road for an indefinite period or for it to take such a lease; nor are we able to find any general language in those statutes, or either of them, in relation to the powers that may be conferred upon corporations which justifies a departure from the principles laid down in Thomas v. Railroad Co.
It is to be remembered that where a statute making a grant of property, or of powers, or of franchises to a private individual or a private corporation becomes the subject of construction as regards the extent of the grant, the universal rule is that in doubtful points the construction shall be against the grantee and in favor of the government or the general public. As was said in the case of Charles River Bridge v. Warren Bridge, 11 Pet. 420, "in this Court, the principle is recognized that in grants by the public nothing passes by implication." See also Dubuque & Pacific Railroad Co. v. Litchfield, 23 How. 66; Turnpike Co. v. Illinois, 96 U. S. 63.
Therefore, if the articles of association of these two corporations, instead of being the mere adoption by the corporators themselves of the declaration of their own purposes and powers, had been an act of the Legislature of Oregon conferring such powers on the corporations, they would be subject to the rule above stated, and to rigid construction in regard to the powers granted. How much more, then, should this rule be applied, and with how much more reason should a court called upon to determine the powers granted by these articles of association construe them rigidly, with the stronger leaning in doubtful cases in favor of the public and against the private corporation.
for the personal advantage of the parties concerned, rather than the general good.
These articles, when signed by the corporators, acknowledged before any justice of the peace or notary public, and filed in the office of the Secretary of State and the clerk of the proper county, become complete and operative. They are, so far as framed in accordance with law, a substitute for legislation, put in the place of the will of the people of the state, formerly expressed by acts of the legislature. Neither the officer who takes such acknowledgment nor those who file the articles have any power of criticism or rejection. The duty of the first is to certify to the fact, and of the second to simply mark them filed as public documents, in their respective offices.
These articles, which necessarily assume by the sole action of the corporators enormous powers, many of which have been heretofore considered of a public character, sometimes affecting the interests of the public very largely and very seriously, do not commend themselves to the judicial mind as a class of instruments requiring or justifying any very liberal construction. Where the question is whether they conform to the authority given by statute in regard to corporate organizations, it is always to be determined upon just construction of the powers granted therein, with a due regard for all the other laws of the state upon that subject, and the rule stated above.
constructing and operating a railroad. The same argument is drawn from the general fact that title 2 recognizes the authority of corporations organized for the construction of railroads, macadamized roads, plank roads, day roads, canals, or bridges to appropriate lands for their necessary uses by the exercise of the right of eminent domain in the manner pointed out.
The language of the statute of New Jersey (quoted in Thomas v. Railroad Co., supra) under which it was urged that the railroad company had authority to make the lease in controversy was quite as general and as liberal in its description of the powers which that corporation was authorized to exercise as anything to be found in the Oregon statutes. In fact, in the authority which was given to that company in regard to making contracts for the transportation of passengers and freight, and the doing of a general railroad business with other corporations and private persons, it approaches nearer the power to make leases than anything which is to be found in the laws of Oregon; yet this Court held that although it was a direct authority from the legislature itself, and not subject to the restrictive criticisms above suggested, the lease made in that case was ultra vires and without authority on the part of the company.
Another important consideration to be observed, peculiarly applicable to the acts of corporations formed by the corporators themselves, declaring what business they are about to pursue and the powers which they purpose to exercise in carrying it on is that while the thing to be done may be lawful in a general way, there are and must be limitations upon the means by which it is to be done or the purpose carried out, which the articles of incorporation cannot remove or violate. A company might be authorized by its articles to establish a large manufactory in a particular locality, and might be held to be a valid incorporation with sufficient powers to prosecute the business described; but such articles, although mentioning the particular place, would not empower the company, in the exercise of the power thus conferred, to carry on a business injurious to the health or comfort of those living in that vicinity.
Instances might be multiplied in which powers described in general terms as belonging to the objects of the parties who thus become incorporated would be valid; but the corporation, in carrying out this general purpose, would not be authorized to exercise the powers necessary for so doing in any mode which the law of the state would not justify in any private person or any unincorporated body. The manner in which these powers shall be exercised and their subjection to the restraint of the general laws of the state and its general principles of public policy are not in any sense enlarged by inserting in the articles of association the authority to depart therefrom.
"Oregonian Railway Company, Limited, the right of way and station grounds over the state lands, and terminal facilities upon the public grounds at the City of Portland."
persons, firm, or corporation, save only with, and as part and parcel of, and as appurtenant to, the railway now built and owned by said company, and now in process of construction by it."
It is strenuously argued, and with some degree of plausibility, that the language of this proviso, and the use of the words "successors" and "assigns" in other statutes, which are referred to, imply that by the law of Oregon railroad companies may make, and must be supposed to be capable of making, assignments. But whatever may have been the intent in the minds of the legislators in using these words, it is not precisely the form in which we would expect to find a grant of the power to sell, to lease, or to transfer the title, ownership, or use of railroad lines, the property belonging thereto, and the franchises necessary to carry them on, by one corporation to another.
One of the most important powers with which a corporation can be invested is the right to sell out its whole property, together with the franchises under which it is operated, or the authority to lease its property for a long-term of years. In the case of a railroad company, these privileges, next to the right to build and operate its railroad, would be the most important which could be given it, and this idea would impress itself upon the legislature. Naturally we would look for the authority to do these things in some express provision of law. We would suppose that if the legislature saw fit to confer such rights it would do so in terms which could not be misunderstood. To infer, on the contrary, that it either intended to confer them or to recognize that they already existed by the simple use of the word "assigns" -- a very loose and indefinite term -- is a stretch of the power of the Court in making implications which we do not feel to be justified.
from the hands of its original owners into the possession of other persons, would justify the description of the latter by the words "successors or assigns." In using these terms, they may have thought that authority might be given by future statutes, either generally to all corporations or to some special organization, to sell or transfer the corporate property, or some part of it. But whatever may have been their purpose, we think the argument is a forced one which would vest in railroad companies the general power to sell or lease their property or franchises or to make contracts to buy or take leases of the same from other railroad corporations from the use which is made of these indefinite terms "successors or assigns."
"It may be fairly inferred that the legislature knew at the time the statute was passed that the plaintiffs were running the road and claiming to do so as lessees of the corporation. It was not important for the purpose of the act to decide whether this was done under a lawful contract or not. No inquiry was probably made as to the terms of that lease, as no information on that subject was needed."
"The legislature was determined that whoever did run the road and exercise the franchises conferred on the company, and under whatever claim of right this was done, should be bound by the rates of fare established by the act. Hence, without undertaking to decide in whom was the right to the control of the road, language was used which included the directors, lessees, and agents of the railroad. "
"The mention of the lessees no more implies a ratification of the contract of lease than the word 'directors' would imply a disapproval of the contract. It is not by such an incidental use of the word 'lessees,' in an effort to make sure that all who collected fares should be bound by the law, that a contract unauthorized by the charter, and forbidden by public policy, is to be made valid, and ratified by the state."
This language applies with great force to the attempt which is made in this case to deduce from the use of the word "assign" in the Act of October 22, 1880, a recognition of the power of the railroad company to sell or assign its entire property and rights. The object of the legislature in making the proviso to that statute was to make sure that the grant given to the Oregonian company of "terminal facilities," as they are called, with the right to wharves, depots, and access to the river for the use of the road, should never be separated by sale, assignment, or otherwise from the road itself, and that into whosesoever hands the road went should also go the rights, powers, and privileges conveyed by the grant. Without these prohibitory words, it is possible the company might have had power to sell or assign the depot or wharves granted, while without the authority to do either in regard to the rights or franchises of which they were already possessed. Hence, they used a term which they supposed in a general way might cover any transfer of the ownership by the railroad company of the grants made to it by the statute, whether by operation of law or otherwise. If the property should be sold out under a mortgage or deed of trust, or any other instrument which the company might possibly have had the power to make to purchasers who might be called "assigns" under such proceedings, there should also go with it the grant made by the statute.
grant or lease of similar property or franchises from any other person or company.
The attempt is made to sustain the proposition here contended for in regard to the power to lease by another inferential process of reasoning which we think equally untenable.
"SEC. 20. Any corporation formed for the purpose of navigating any stream or other water may, by virtue of such incorporation, construct any railroad, macadamized road, plank road, or day road, or canal or bridge necessary and convenient for the purpose of transporting freight or passengers across any portages on the line of such navigation occasioned by any rapids or other obstructions to the navigation of such stream or other water in like manner and with like effect as if such corporation had been specially formed for such purposes, but no corporation formed under this act or heretofore or hereafter incorporated by any special act of incorporation, passed by the legislative assembly of this state or otherwise, for the purpose of navigating any stream or other water of this state or forming the boundary thereof in whole or in part, nor any stockholder in such corporation, shall ever take or hold stock or any interest, directly or indirectly, in the stock of any corporation which may be formed under this act for the purpose of building or constructing any road in this act mentioned, nor shall any such corporation ever purchase, lease, or in any way control such road or the corporate rights of such last-named corporation."
It is argued that this prohibition against leasing the railroad is a recognition of the fact that such a power would have existed if it had not been forbidden by this statute; but as the language of the whole section relates to the competition which may exist or arise between corporations organized for the purpose of navigating streams or other waters when they may find it convenient to construct a road across such portages on the line of their navigation as may be required to carry over goods and property from one navigable water to another, we do not see that it has any effect in establishing such a general principle.
From the simple fact that in the revision of this law all reference to leases was omitted it is argued that the general power of leasing one road by another wherever situated, without reference to its competition with roads owned by navigation companies, amounts to a restoration of the power to lease or accept leases on the part of any railroad company in the state of all its road, of all its franchises, of all its property, for an indefinite length of time.
As to this, we can only say that the original section, relating solely to a peculiar class of objects -- namely the construction of roads across portages by corporations navigating the waters of the state, and forbidding by its last clause the purchase, lease, or control of such portage road, or the corporate rights acquired by them -- was necessarily limited to that class of roads, and the repeal or modification of so much of the section as related to the power to lease could have no effect to declare that all railroads in the State of Oregon had the power to make contracts of lease, either as lessors or lessees.
"SEC. 19. Any corporation organized under the provisions of this act may at any meeting of the stockholders which is called for such purpose, by a vote of the majority of the stock of such corporation, increase or diminish its capital stock, or the amount of the shares thereof, or authorize the dissolution of such corporation and the settling of its business and disposing of its property and dividing its capital stock, provided, however, that the capital stock of any corporation formed under this act, except corporations formed for the purpose of making and constructing a railroad, shall never exceed the sum of two million of dollars, and any corporation that shall violate this provision of this act shall forfeit its corporate rights."
in which event it may proceed to settle up its affairs, dispose of its property, and divide its capital stock, therefore a corporation in full operation, with no such purpose of terminating its existence, may, in the ordinary course of its business, sell all of its property, real and personal, and if it be a railroad company, dispose of its road, its franchises, and the powers necessary to properly carry on the business of a carrier. It is insisted that if it can do this, it may therefore make a lease of such property and franchises, transferring all those powers, rights, and privileges.
But it does not need argument to show that such provision, made for the dissolution of a corporation by the voluntary act of its incorporators, providing for the disposition of its property when the resolution to that effect has been adopted, whether by distribution of dividends on its profits, or the sale of shares of stock, or for any other disposition of its effects compatible with law, is not applicable to, and cannot be intended to confer upon, corporations continuing in existence or which, like these companies, contemplate in the very contract entered into a continuance of more than 96 years, the power to dispose of their corporate powers and franchises, much less the authority to lease them for an indefinite period to others.
In the case before us both corporations continued to exist; they both entered into contracts covering a period of ninety-six years, and if the contract of lease be valid, one of them obtained thereby the right to the control and use of the property and franchises of the other, which on its part became bound for the payment of rent therefor, a supposed profit on the capital for the entire period of the term. We can see no reason why the powers conferred upon a corporation going out of existence, and dissolved by its own act, including the right to wind up its affairs and dispose of its property, can be held to confer any such power on a company which contemplates an existence of a hundred years to come.
it at all, the legislature being prohibited by the constitution from granting special charters of incorporation, and therefore, it is said, it has no authority to grant special privileges to a particular corporation -- a proposition we are not prepared to concede to its fullest extent. But assuming, without deciding, that it is true that the legislature cannot grant the right to a particular railroad company to make or to take a lease of the railroad of another company, it would be clearly within its power to confer by general laws on all railroad corporations within the state the powers to make and to take leases, which powers are claimed by the plaintiff to exist under the general law of Oregon as it now stands.
The reasons for holding that the Oregonian Company had no power to make the lease of its railroad are even stronger than those for holding that the Oregon Railway and Navigation Company had no power to take the lease.
In the first place, even if a domestic railroad corporation established under the general laws of Oregon could be construed as entitled to assume by its articles the power of taking leases of other railroads as incident to and in connection with operating its own road, it would by no means follow that such a corporation could assume the power of leasing its whole railroad for a term of years to another corporation, and thereby substantially abandon and transfer its whole corporate rights and franchises.
"any foreign corporation incorporated for the purpose of constructing, or constructing and operating, or for the purpose of, or with the power of, acquiring and operating, any railway,"
"the same rights, powers, and privileges in the exercise of the rights of eminent domain, collection of tolls, and other prerogative franchises as are given by the laws of this state to corporations organized within this state for the purpose of constructing any railway,"
or for one of the other purposes already specified, of which the making of leases is not one. And the second section, merely providing that nothing in the act contained shall be so construed as to give to foreign corporations any other or further rights than may be acquired or exercised by domestic corporations, but only to give them the same as domestic corporations may acquire or exercise, is evidently limited to the classes, both of foreign and domestic corporations, specified in the first section.
Under this statute, in short, foreign corporations created for the purpose of leasing get no power at all, and no foreign corporation gets any power to sell or lease its road.
Another argument relied upon by counsel for the defendant in error is that, within the principles laid down in certain cases on the subject, the contract here is so far an executed one that the plaintiff in error is estopped to deny its validity and to refuse to continue its performance. As already stated, the contract was one by which the plaintiff demised its road, privileges, and franchises, for a period of ninety-six years, from the 1st of August, 1881, to the defendant, who took possession of it, and used and occupied it under the lease until the 15th day of May, 1884, a period of less than three years. It then did what was equivalent to returning the property to the plaintiff, and refused to be further bound by the contract.
To say that a contract which runs for ninety-six years and which requires of both parties to it continual and actual operations and performance under it becomes an executed contract by such performance for less than three years of the terms is carrying the doctrine much further than it has ever been carried, and is decidedly a misnomer. This class of cases is not governed by the doctrine of part performance in a suit in equity for specific performance, nor is this a suit for specific performance.
This is an action at law to recover money under a contract which is void, where for nearly three years the parties acted under it, but in which one of them refuses longer to be bound by its provisions, and the argument now set up is that because the defendant has paid for all the actual use it made to the road while engaged in the actual performance of the contract between the dates just given, it is thereby bound for more than ninety-three years longer by the contract which was made without lawful authority by its president and board of directors. We consider this proposition as needing no further consideration, except a reference to the discussion of the same subject in Thomas v. Railroad Co. and Pennsylvania Railroad Co. v. St. Louis &c. Railroad Co., already cited.
The judgment of the Circuit Court of Oregon is reversed, and the case is remanded to that court, with a direction to overrule the demurrer, and to take such further proceedings as shall be according to law, and not inconsistent with this opinion.
I am not able to agree with the majority of the Court in the decision of this case. It seems to me clear that a railway corporation of Oregon has the right, under her laws, to lease its road to another corporation of like character. A foreign corporation, as is the plaintiff below, is by the Act of October 21, 1878, placed on the same footing with a domestic corporation, upon complying with the laws passed for the regulation of such corporations transacting business in the state. That act declares that upon such compliance, the foreign corporation shall have "the same rights, powers, and privileges" as a domestic corporation.
"An act to grant the Oregonian Railway Company, Limited, the right of way and station grounds over the state lands, and terminal facilities upon the public grounds at the City of Portland,"
"save only with, and as a part and parcel of and as appurtenant to, the railway now built and owned by said company, and now in process of construction by it."
As the court below observed, and, it seems to me, very justly, this implies that the plaintiff had the power to assign its road, and also the premises and rights thus granted to it in connection therewith, but not otherwise. I cannot perceive what public policy of the state is sustained by denying to a foreign corporation, which has by her permission constructed a railway therein, the right to lease its road to a domestic corporation. It would rather seem, if any considerations of public policy are to control, that such policy would favor a transfer of the road from foreigners to her own citizens. When the transfer is made, the state can exercise over the road, its management, and the charges for its use the same authority which she could have previously exercised. And there is nothing in the articles of association which forbids the directors of the plaintiff from making such a transfer if the laws of Oregon permit it.
MR. CHIEF JUSTICE FULLER was not a member of the Court when this case was argued, and took no part in this decision.

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Although the Individuals with Disabilities Education Act (IDEA) does not guarantee a right to special education services for private school students with disabilities, the Eighth Circuit recently held that Minnesota law does require public school districts to provide a free appropriate public education (FAPE) for private school students, as well as the right to dispute the provisions of special education services in an impartial due process hearing. In Special School District No. 1 v. R.M.M., 16-1601 (8th Cir. June 29, 2017), R.M.M., a student who attended a Catholic private school in Minneapolis, received an evaluation from the Minneapolis Public Schools (Special School District No. 1), in the fifth grade for special education services in reading, written expression, and math. After the Catholic school informed her parents that it could not provide the special education services that the student needed, the student transferred to Minneapolis Public Schools (MPS). The student sued MPS for failing to provide appropriate special education services while she was enrolled in private school. The Administrative Law Judge concluded that R.M.M. had been denied a FAPE; the federal district court dismissed the FAPE claims again the school system, but held that Minnesota law granted private school students the right to under the state law counterpart to FAPE. The district court also ruled for R.M.M. on the issue of whether private school students in Minnesota are entitled to a due process hearing to dispute whether they have received a FAPE. On MPS' appeal to the Eighth Circuit, the appeals court held that Minnesota's provision went beyond the minimum requirements of the IDEA, and when comparing Minnesota's statute with language in IDEA, the Eighth Circuit found that the Minnesota legislature intended to provide private students the right to a FAPE, even though the statute does not use the term. The applicable statute, known as the shared-time statute, provides that “No resident of a district who is eligible for special instruction and services under this section may be denied instruction and service on a shared time basis . . . because of attending a nonpublic school.” Id. § 125A.18. The appellate court also affirmed the district court on the issue of R.M.M.'s parents' ability to to an impartial due process hearing under state law. The parents did have such a right under Minnesota law, the court held, rejecting MPS' argument that only the school district could pursue such remedies when a child was enrolled in a non-public school. The case, Special School District No. 1 v. R.M.M., 16-1601 (8th Cir. June 29, 2017), is available here.
The case for early childhood programs as remedies for inadequate educational opportunity is now more compelling than ever. Scores of scientific and social science studies over the past ten years have made increasingly clear the extent to which differences in the quality of care and enrichment that children experience in their earliest years powerfully shape their future educational careers and thereby reinforce intergenerational cycles of inequality. [T]his Article aims to resurrect, and reinvigorate, [Harvard School of Education Dean Jim] Ryan's argument in favor of preschool as an essential remedy in education adequacy litigation. But whereas Ryan--based in part on his reading of the existing social science literature--focused specifically on adding one additional year of pre-kindergarten schooling, this Article argues for an even more robust expansion of early childhood-focused efforts. Relying upon a mounting body of research on the importance of children's home literacy environments and development experiences during infancy and toddlerhood--as well as empirical findings from a number of controlled field experiments--this Article also argues that states should implement and fund programs to provide developmental support for economically disadvantaged children in the first years of life.
On Tuesday, the New York Court of Appeals dismissed most of the claims in two lawsuits that alleged that the state has failed to adequately fund New York City public schools and thus violated the state constitution's education article's requirement to provide schoolchildren with a "sound basic education." The suits' plaintiffs contended that NYC schools received millions less than they were entitled after the legislature failed to fully fund the education formula it devised to comply with court orders in the long-standing equity suit, Campaign for Fiscal Equity, Inc. v State of New York. New York state froze education funding in the 2008 recession and reduced it thereafter, creating a nearly two billion dollar education funding deficit since the freeze. The plaintiffs in one of the suits, New Yorkers for Students' Educational Rights (NYSER), an educational advocacy group, sought relief for schoolchildren across the state. NYSER's funding adequacy claim survived, but the Court of Appeals limited the claim to NYC and Syracuse, where the plaintiffs had provided specific allegations of a causal link between budget cuts and education impact. The other plaintiffs, a coalition of parents (Aristy-Farer), argued that New York's withholding of $290 million in 2012 to the NYC school district as a penalty when the city failed to comply with state law requiring districts to conduct performance reviews of teachers and administrators violated the education article. The Court of Appeals held that this allegation did not state a cognizable claim as the education article does not require a particular amount of state funding. The remainder of the Aristy-Farer plaintiffs' claims were found to be inadequately pled as there was no specific allegation linking the failure to fund public schools with deficiencies in the city's education program. The Court of Appeals affirmed the Appellate Division's decision to allow two of NYSER's claims--one challenging the adequacy of the State's education funding accountability mechanisms and another the inadequate funding of NYC and Syracuse's school districts--to proceed. The decision in Aristy-Farer v. State (NY Ct. of App., June 27, 2017) available at FindLaw here.
The price of shares of for-profit higher education provider Apollo Education Group, owner of the University of Phoenix, rose nearly 7 percent the day after the election of Donald Trump, and kept rising in the following weeks. The price had been trending downward in 2015.
Various news organizations have written about similar post-election, upward bumps in the sector. Now comes the announcement on Wednesday from the Education Department that the Trump Administration intends to delay implementation of Obama-era rules aimed at curbing misconduct in the for-profit sector.
So we have some evidence that investors’ expectations were accurate.
Betsy DeVos, the education secretary, in a statement described the move as part of a “regulatory reset.” She did not explain precisely the reason for the reset, but more on that in a moment.
The rules, slated to take effect on July 1st, were already the product of a negotiated rulemaking process. The Education Department announced a new negotiated rulemaking on the regulations, which addressed borrower defenses to repayment and the “gainful employment” requirement.
The defense to repayment regulations sought to incorporate student borrowers’ ability to repay in the assessment of institutional eligibility for participation in federal student aid programs. The idea was, if a significant share of student borrowers struggled with their debts, perhaps the educational program should not be eligible to participate. A description of the rules is here.
What was wrong with these rules? They were “overly burdensome and confusing for institutions of higher education,” according to the Education Department statement.
The borrower defense to repayment rules create a procedure for student borrowers to contest the obligation to repay, if they can show the education provider made a misrepresentation or that the provider failed to perform on its contract with a student. The description is here.
Prior to the election, there was good reason to believe that a Trump Administration might be sympathetic to the for-profit education sector. After all, then-candidate Trump was associated with Trump University, which shortly after the election last fall settled civil lawsuits filed on behalf of former students. That settlement was approved by a court a few months ago.
But this week’s announcement is public executive action explicitly beneficial to the for-profit sector.
Unfortunately for Apollo Group shareholders, they voted way back in May 2016 to take the company private, in a transaction completed in February. Perhaps they should have held on.
In 2014, plaintiffs filed two different lawsuits challenging New Mexico's education system. The first alleged that ELL and economically disadvantaged students are receiving a substandard education under the state's funding scheme and A-F grading system. The state's education funding formula, the plaintiffs alleged, fails to allocate sufficient supplemental funds for areas were the needs are greatest for at-risk and special needs students. The funding inequity, combined with the teacher evaluation system, results in experienced teachers avoiding lower-ranked schools. The second lawsuit raises similar issues and emphasizes that the outcomes for students in the state have fallen to the bottom of nation.
"These failings are costing students the opportunity to succeed," said Marisa Bono, a lead attorney for the plaintiffs, in opening statements to the court. "The state is pumping hundreds of thousands of students into the state economy who are wholly unprepared for college or career."
Education officials under Republican Gov. Susana Martinez say spending is more than adequate, and that the state has added specialized programs to help struggling students while holding teachers and school leaders more accountable for students' academic progress.
In opening statements Monday, an attorney for the state said high levels of poverty across New Mexico have a major impact on the results of student testing — something that won't be addressed by funneling more money toward public schools.
"The evidence will show that additional spending will have virtually no effect on student test scores," attorney Jeff Wechsler said. "The defendants cannot show that spending more will impact them in any meaningful way."
The plaintiffs called on Santa Fe Public Schools Superintendent Veronica Garcia — a former state public education secretary — to testify about what she described as shockingly low levels of proficiency in math and reading among graduating students.
Garcia noted that many schools are not included in new programs that intercede at an early age by expanding pre-school to 4-year-olds and lengthening the school day and school year through third grade. She faulted the overall level of state funding for public schools, as well as limited funds for programs tailored toward the students from low-income households where English is not the primary language.
It will be interesting to see what evidence Wechlsler uses to defend his claim that additional money is inconsequential. Maybe, he hopes to focus on "virtually" no "meaningful" effect, rather than suggest there is no effect. But even then, past research is not on his side. As detailed in Averting Educational Crisis, new research findings shoe a particularly compelling connection. For instance, Kirabo Jackson's study of three decades of data "found that a 20% increase in per-pupil funding, if maintained over the course of a students’ education career, results in low-income students completing almost a full additional year’s worth of education. That additional learning eliminates two-thirds of the gap in outcomes between low- and middle-income students." Likewise, the Kansas Supreme Court emphasized a recent study by the state itself that "concluded, with ‘99% confiden[ce],’ that the relationship between student performance and district spending was positive, i.e., that a 1% increase in student performance was associated with a .83% increase in spending."
This Article shows the slow development of teacher performance reviews over time; it begins with a history of teacher evaluation from the colonial era to the present, discusses the introduction of Valued Added Modeling (VAM) to ensure student achievement, provides an overview of current teacher evaluation models and concludes by identifying policy considerations in creating accurate, comprehensive and fair evaluation systems.
Survivors of sexual assault generally report negative experiences with the criminal justice system, civil law system, and college adjudicatory system--all sources of secondary trauma. This Article suggests that access to victim-centered, comprehensive legal advice at all stages of sexual assault investigations and the adjudication process has the potential to diminish secondary trauma by providing student victims with two vital tools: a choice to initiate and participate in a criminal or campus investigation by providing sufficient information for informed consent and a voice throughout the investigation and legal proceedings. Specifically, the Article argues that student victims would benefit from access to victims' attorneys at four distinct stages following a sexual assault: (1) the pre-reporting stage-to provide sufficient information and legal advice to ensure reports to law enforcement and colleges are intentional and provided with victims' informed consent; (2) the investigation stage--to ensure that student victims maintain agency throughout the investigation, help prevent unprofessional investigation techniques, and promote access to interim measures necessary to meet safety, privacy, and educational needs; (3) the hearing stage--to enforce victims' safety rights, amplify victims' voices in the proceedings, and reduce secondary trauma from victim-blaming questions and arguments; and (4) the post-hearing stage, including appeals and civil lawsuits--to provide representation in internal college appeals, lawsuits filed by the respondent or victim against the college, and retaliatory complaints or lawsuits filed against the victim, including defamation and harassment.
The Minnesota Supreme Court has previously recognized a fundamental right to an adequate education in the context of school funding challenge brought under the Education Clause of the state’s constitution. Now it is faced with the issue of whether a claim that Minneapolis-area schools are unlawfully segregated is appropriate for determination – or “justiciable.” – under that same Education Clause.
In Guzman v. Minnesota, a trial court judge ruled the plaintiffs’ segregation claim justiciable. The State appealed and the court of appeals reversed. The case is now before the Minnesota Supreme Court.
To support the Guzman plaintiffs, Education Law Center and over twenty of the nation’s leading education and constitutional law scholars have filed a “friend of the court” or amicus curiae brief before the Minnesota high court. The brief argues that, under the state constitution’s mandate for the legislature to maintain a “general and uniform system of education,” plaintiffs’ claims of racial and socio-economic segregation are proper for adjudication by the trial court.
The amicus brief cites to the landmark Booker v. Plainfield and Sheff v. O’Neill rulings by the New Jersey and Connecticut Supreme Courts, along with the numerous decisions from high courts in peer states on school finance and other equity issues, to demonstrate the responsibility of courts to decide education rights claims. The brief also emphasizes Minnesota court precedent supports allowing the segregation claim in Guzman to proceed to trial.
a claim that an education system is segregated by race is justiciable because, as state supreme courts have long and properly recognized, education clauses in a state constitution not only prohibit intentional segregation that is unlawful under Brown v. Board of Education, 347 U.S. 483 (1954), but also protect students against the negative effects of segregation when they are unintentional. Segregated schools are unequal schools and therefore do not provide a “general and uniform,” “thorough and efficient” system of education, as required by the Minnesota State Constitution.
There is no principled basis for treating a challenge to school segregation differently than a challenge to school financing. The Education Clause does not single out one or the other for special treatment, but is phrased in broad terms. Moreover, as in most lawsuits challenging compliance with a constitutional standard, it is a court’s proper role to apply and, in the context of individual cases such as this one, give meaning to the standard—and that is exactly what this Court did in Skeen. That is not making “policy,” as the Court of Appeals stated, but judging.
The amicus also bring to the Minnesota justices attention the “robust body of research” demonstrating “that segregated schools—especially hyper-segregated schools as alleged by Plaintiffs in their Complaint—severely disadvantage minority and economically disadvantaged students, in terms of academic performance and other crucial measures of achievement.” Further, the amicus emphasize the research showing integrated schools “provide educational and other benefits to all students—white students and minorities alike.” Because these benefits are central to students’ ability to effectively participate in civil life, workplaces, and global economy in the future, diverse education settings are a necessary component of an adequate education.
ELC and the Constitutional and Education Law Scholars were represented pro bono by Todd R. Geremia, James M. Gross and Christina Lindberg at the Jones Day law firm in New York and Minneapolis, and by Derek Black, a professor at the University of South Carolina School of Law and David Sciarra, ELC Executive Director.
A federal class action suit has been filed alleging that Worth County (Ga.) Sheriff’s Office employees conducted a suspicionless search of 900 students at Worth County High School on April 14, 2017. Acting on information that a "target list" of thirteen students at the high school possessed drugs, Worth Co. Sheriff John Hobby placed the high school on "lockdown" for four hours while deputies conducted body searches, including feeling inside students' clothing and underwear. Although only three of the students on the target list were at school the day of the search and those students were brought to the administrative offices upon the Sheriff's arrival, the sheriffs searched all students, had dogs sniff their cars and belongings, and temporarily seized their cellphones during the four-hour search. Several students alleged that the deputies touched the students' genitalia while they were being searched. No illegal controlled substances or drug paraphernalia were discovered during the mass search. Apparently, neither the school administrators nor the assigned school resource officer (who was away from the school at the time of the search) knew of or agreed to the search. The plaintiffs allege that the Sheriff violated clearly established law by conducted a mass, physically intrusive searches without individualized suspicion. Crystal Redd, an attorney at the Southern Center for Human Rights said in a statement, “[The student-plaintiff] is going to court to hold the Sheriff accountable for treating public school children like suspected criminals.”A copy of the complaint, K.A. v. Hobby (M.D. Ga., filed Jun. 1, 2017) filed by the Southern Center for Human Rights is here.
A federal district court judge has decided that Gardendale – a predominantly white city in the suburbs of Birmingham, Alabama – can move forward in its effort to secede from the school district that serves the larger county. The district Gardendale is leaving is 48 percent black and 44 percent white. The new district would be almost all white.
The idea that a judge could allow this is unfathomable to most, but the case demonstrates in the most stark terms that school segregation is still with us. While racial segregation in U.S. schools plummeted between the late 1960s and 1980, it has steadily increased ever since – to the the point that schools are about as segregated today as they were 50 years ago.
While proponents of the secession claim they just want the best education for their children and opponents decry the secession as old-school racism, the truth is more complex: Race, education and school quality are inextricably intertwined.
With the Legislature's biennium session set to end June 5, the defeat of the Governor's bill puts an end to proponents' three-year effort to bring private school vouchers to the Silver State.
The nation's most expansive ESA voucher law, Senate Bill 302, was enacted in the last biennium session in June 2015. The program never got off the ground after a group of public school parents challenged the law in court. The parents in Lopez v. Schwartz argued that the voucher law violated the ban in the State constitution against diverting public school funding to a non-public purpose. In September 2016, the Nevada Supreme Court agreed with the parents and issued an injunction permanently blocking the program.
South Carolina is making progress in limiting its school-to-prison pipeline, thanks to new state Department of Education regulations growing out of a school incident which went viral nearly two years ago.
The background: in October 2015, a teenager at a Columbia, SC high school refused repeated demands to put away her cell phone. Both the cell phone and the teen were quiet, and not interfering with any other student. When she refused, her teacher involved her assistant principal. When she refused his demands to put away the phone, he involved the school resource officer (SRO). And when she refused his demands, he arrested her for the crime of “disturbing schools” and was caught on video pulling the child out of her chair and, as the local sheriff later put it, “throwing  the student across the floor,” making this another in a now-long list of questionable cases of SRO actions in school. To top it off, he arrested and charged a second student with disturbing schools for encouraging her classmates to record the incident (that is, the recordings which brought this incident to the public’s eye) and objecting to the officer’s treatment of the teenager with the cell phone.
The evolution of education policy rationales can make for interesting study.
Last week, Betsy DeVos, the secretary of education, explained in a Wall Street Journal column why the structure of federal student loan servicing needed to change. Instead of maintaining a stable of companies that service loans for student borrowers – servicing entails receiving and keeping track of payments, keeping track of borrowers, ostensibly trying to keep borrowers out of default – the Education Department would move to a single servicer model.
“Simply put, the current systems used by Federal Student Aid are not designed to put customers – students and their parents – first,” DeVos wrote in explaining the move. The process, which she went on to characterize as “complicated and rife with confusion,” makes it too burdensome for students to get questions about their loans answered, for example.
For those unable to access the recent Alabama decision allowing a predominantly white community to secede from its more integrated parent district, I am uploading it for your convenience. See below.


text:
Mr. Elbert P. Tuttle, of Atlanta, Ga., for petitioner.
Mr. Bates Booth, of Washington, D.C., for respondent.
Petitioner, while imprisoned in a federal penitentiary, was denied habeas corpus by the District Court. 1 Later, [304 U.S. 458, 459] that court granted petitioner a second hearing, prompted by 'the peculiar circumstances surrounding the case and the desire of the court to afford opportunity to present any additional facts and views which petitioner desired to present.' Upon consideration of the second petition, the court found that it did 'not substantially differ from the' first, 'and for the reasons stated in the decision in that case' the second petition was also denied.
Petitioner and one Bridwell were arrested in Charleston, S.C., November 21, 1934, charged with [304 U.S. 458, 460] feloniously uttering and passing four counterfeit twenty-dollar Federal Reserve notes and possessing twenty-one such notes. Both were then enlisted men in the United States Marine Corps, on leave. They were bound over to await action of the United States Grand July, but were kept in jail due to inability to give bail. January 21, 1935, they were indicted; January 23, 1935, they were taken to court and there first give notice of the indictment; immediately were arraigned, tried, convicted, and sentenced that day to four and one-half years in the penitentiary; and January 25, were transported to the Federal Penitentiary in Atlanta. While counsel had represented them in the preliminary hearings before the commissioner in which they-some two months before their trial-were bound over to the Grand Jury, the accused were unable to employ counsel for their trial. Upon arraignment, both pleaded not guilty, said that they had no lawyer, and-in response to an inquiry of the court-stated that they were ready for trial. They were then tried, convicted, and sentenced, without assistance of counsel.
'Both petitioners lived in distant cities of other states and neither had relatives, friends, or acquaintances in Charleston. Both had little education and were without funds. They testified that they had never been guilty of nor charged with any offense before, and there was no evidence in rebuttal of these statements.' 5 In the habeas corpus hearing, petitioner's evidence developed that no request was directed to the trial judge to appoint counsel, but that such request was made to the District Attorney, who replied that in the state of trial (South Carolina) the court did not appoint counsel unless the defendant was charged with a capital crime. The District Attorney denied that petitioner made request [304 U.S. 458, 461] to him for counsel or that he had indicated petitioner had no right to Counsel. The Assistant District Attorney testified that Bridwell 'cross examined the witnesses;' and, in his opinion, displayed more knowledge of procedure than the normal layman would possess. He did not recall whether Bridwill addressed the jury or not, but the clerk of the trial court testified 'that Mr. Johnson (Bridwell?) conducted his defense about as well as the average layman usually does in cases of a similar nature.' Concerning what he said to the jury and his cross-examination of witnesses, Bridwell testified: 'I tried to speak to the jury after the evidence was in during my trial over in the Eastern District of South Carolina. I told the jury, 'I don't consider myself a hoodlum as the District Attorney has made me out several times.' I told the jury that I was not a native of New York as the District Attorney stated, but was from Mississippi and only stationed for overnme nt service in New York. I only said fifteen or twenty words. I said I didn't think I was a hoodlum and could not have been one of very long standing because they didn't keep them in the Marine Corps.
Reviewing the evidence on the petition for habeas corpus, the District Court said6 that, after trial, petitioner and Johnson '... were remanded to jail, where they asked the jailer to call a lawyer for them, but were not permitted to contact one. They did not, however, undertake to get any message to the judge. [304 U.S. 458, 462] '... January 25th, they were transported by automobile to the Federal Penitentiary in Atlanta, Ga., arriving ... the same day.
'There, as is the custom, they were placed in isolation and so kept for sixteen days without being permitted to communicate with any one except the officers of the institution, but they did see the officers daily. They were no request of the officers to be permitted to see a lawyer, nor did they ask the officers to present to the trial judge a motion for new trial or application for appeal or notice that they desired to move for a new trial or to take an appeal.
The '... right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself wheter the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.' 10 The Sixth Amendment withholds from federal courts,11 in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel. [304 U.S. 458, 464] Two. There is insistence here that petitioner waived this constitutional right. The District Court did not so find. It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights12 and that we 'do not presume acquiescence in the loss of fundamental rights.' 13 A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.
Patton v. United States, 281 U.S. 276 , 50 S.Ct. 253, 70 A.L.R. 263, decided that an accused may, under certain circumstances, consent to a jury of eleven and waive the right to trial and verdict by a constitutional jury of twelve men. The question of waiver was there considered on direct appeal from the conviction, and not by collateral attack on habeas corpus. However, that decision may be helpful in indicating how, and in that manner, an accused may-before his trial results in final judgment and conviction-waive the right to assistance of counsel. The Patton Case noted approvingly a state court decision14 pointing out that the humane policy of modern criminal law had altered conditions which had existed in the 'days when the accused could not testify in his own behalf, (and) was not furnished counsel,' and which had made it possible to convict a man when he was 'without money, without counsel, without ability to summon witnesses, and not permitted to tell his own story ....' [304 U.S. 458, 465] The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused- whose life or liberty is at stake-is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.
Petitioner, convicted and sentenced without the assistance of counsel, contends that he was ignorant of his right to counsel, and incapable of preserving his legal and constitutional rights during trial. Urging that- after conviction-he was unable to obtain a lawyer; was ignorant of the proceedings to obtain new trial or appeal and the time limits governing both; and that he did not possess the requisite skill or knowledge properly to conduct an appeal, he says that it was-as a practical matter- impossible for him to obtain relief by appeal. If these contentions be true in fact, it necesarily f ollows that no legal procedural remedy is available to grant relief for a violation of constitutional rights, unless the courts protect petitioner's rights by habeas corpus. Of the contention that the law provides no effective remedy for such a deprivation of rights affecting life and liberty it may well be said-as in Mooney v. Holohan, 294 U.S. 103, 113 , 55 S.Ct. 340, 342, 98 A.L.R. 406-that it 'falls with the premise.' To deprive a citizen of his only effective remedy would not only be contrary to the 'rudimentary demands of justice' 21 but destructive of a constitutional guaranty specifically designed to prevent injustice.
It must be remembered, however, that a judgment cannot be lightly set aside by collateral attack, even on habeas corpus. When collaterally attacked, the judgment of a court carries with it a presumption of regularity. 25 Where a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional [304 U.S. 458, 469] right to assistance of Counsel. If in a habeas corpus hearing, he does meet this burden and convinces the court by a preponderance of evidence that he neither had counsel nor properly waived his constitutional right to counsel, it is the duty of the court to grant the writ.
In this case, petitioner was convicted without enjoying the assistance of counsel. Believing habeas corpus was not an available remedy, the District Court below made no findings as to waiver by petitioner. In this state of the record we deem it necessary to remand the cause. If-on remand-the District Court finds from all of the evidence that petitioner has sustained the burden of proof resting upon him and that he did not competently and intelligently waive his right to counsel, it will follow that the trial court did not have jurisdiction to proceed to judgment and conviction of petitioner, and he will therefore be entitled to have his petition granted. If petitioner fails to sustain this burden he is not entitled to the writ.
[ Footnote 1 ] Bridwell v. Aderhold, 13 F.Supp. 253.
[ Footnote 3 ] 5 Cir., 92 F.2d 748.
[ Footnote 4 ] 303 U.S. 629 , 58 S.Ct. 610, 82 L.Ed. --.
[ Footnote 5 ] Opinion of the District Judge, Bridwell v. Aderhold, D.C., 13 F. Supp. 253, 254.
[ Footnote 6 ] Bridwell v. Aderhold, 13 F.Supp. 253, 254.
[ Footnote 7 ] Bridwell v. Aderhold, D.C., 13 F.Supp. at page 256; see Rules of Practice and Procedure (Criminal Appeals Rules), adopted May 7, 1934, II, III, 28 U.S.C.A. following section 723a.
[ Footnote 8 ] Cf. Palko v. Connecticut, 302 U.S. 319, 325 , 58 S.Ct. 149, 152.
[ Footnote 9 ] Patton v. United States, 281 U.S. 276, 308 , 50 S.Ct. 253, 261, 70 A.L.R. 263.
[ Footnote 10 ] Powell v. Alabama, 287 U.S. 45, 68 , 69 S., 53 S.Ct. 55, 63, 64, 84 A.L.R. 527.
[ Footnote 11 ] Cf., Barron v. The Mayor, etc., of Baltimore, 7 Pet. 243, 247; Edwards v. Elliott, 21 Wall. 532, 557.
[ Footnote 12 ] Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393 , 57 S.Ct. 809, 811, 812; Hodges v. Easton, 106 U.S. 408, 412 , 1 S.Ct. 307.
[ Footnote 13 ] Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 307 , 57 S.Ct. 724, 731.
[ Footnote 14 ] Hack v. State, 141 Wis. 346, 351, 124 N.W. 492, 45 L.R.A.,N.S., 664.
[ Footnote 15 ] Cf., Ex parte Watkins, 3 Pet. 193; Knewal v. Egan, 268 U.S. 442 , 45 S.Ct. 522; Harlan v. McGourin, 218 U.S. 442 , 31 S.Ct. 44, 21 Ann.Cas. 849.
[ Footnote 16 ] Woolsey v. Best, 299 U.S. 1, 2 , 57 S.Ct. 2.
[ Footnote 17 ] Frank v. Mangum, 237 U.S. 309, 327 , 35 S.Ct. 582, 587.
[ Footnote 18 ] In re Mayfield, 141 U.S. 107, 116 , 11 S.Ct. 939, 941; In re Cuddy, Petitioner, 131 U.S. 280 , 9 S.Ct. 703.
[ Footnote 19 ] 28 U.S.C., ch. 14, 451 et seq., 28 U.S.C.A. 451 et seq.
[ Footnote 20 ] Frank v. Mangum, supra, pages 330, 331, 35 S.Ct. page 588, cf., Moore v. Dempsey, 261 U.S. 86 , 43 S.Ct. 265; Mooney v. Holohan, 294 U.S. 103 , 55 S.Ct. 340, 98 A.L.R. 406; Ex parte Hans Nielson, Petitioner, 131 U.S. 176 , 9 S.Ct. 672.
[ Footnote 21 ] Cf. Mooney v. Holohan, supra, page 112, 55 S.Ct. page 342.
[ Footnote 22 ] Cf. Frank v. Mangum, supra, page 327, 35 S.Ct. 582.
[ Footnote 23 ] Ex parte Hans Neilsen, Petitioner, supra.
[ Footnote 24 ] Cf. Moore v. Dempsey, 261 U.S. 86, 92 , 43 S.Ct. 265, 267; Patton v. United States, 281 U.S. 276, 312 , 313 S., 50 S.Ct. 253, 70 A.L.R. 263.
[ Footnote 25 ] In re Cuddy, Petitioner, supra.

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