The Jamestown, NY, School Board passed a resolution on September 14, 2004,
prohibiting any board member from reading the Individualized Education Program
(IEP) of a district student, in the process of deciding whether to approve or dis-
approve the IEP. The Board Member must rely solely on a brief summary written
(WDNY, Hon. John T. Elfvin, S.U.S.D.J., Dkt. 2006-01-27 05-cv-0407, Jan. 27, 2006),
the federal district court in Buffalo, New York, decided last week that the 1st Amendment
rights of Board Member Deann Nelson, Ed.D, who was the only member actually reading
the IEPs, had not been violated by the ban, under either a retaliation theory or the theory
that her ability to perform the duties for which she was elected had been impaired.
Note: Counsel for Plaintiff Deann Nelson is Arthur J. Giacalone,
the brother of this weblog’s Editor.
The Facts
As a member of the Jamestown, NY, School Board, Deann Nelson, Ed.D., is required to
vote on whether to approve the Individualized Education Program (IEP) prepared for each
child under the Individuals with Disabilities in Education Act (”the IDEA”), 20 U.S.C. §1400
et seq. The custom of the Jamestown Board, however, is to take action on each IEP based
solely on a one-page summary – called a “board action sheet” – prepared and forwarded to
the Board by the Committee that prepared the IEP.
After her election to the Board in July 2003 for a one-year term. Dr. Nelson began to raise
concerns regarding the sufficiency of the information provided by the Committees in order to
assess the propriety of the IEPs, and she expressed the desire to read the actual IEPs. She
was allowed to read the IEPs but only in the district?s administrative offices.
In the course of reviewing hundreds of IEPs, she often raised questions about
individual IEPs and systemic problems. When she ran for re-election in May 2004, Nelson
promised that she would “engage in meaningful review of IEPs for every child submitted for
board approval.” After Nelson’s re-election in May 2004, she continued to voice her concerns
regarding what she considered to be “irregularities and systemic problems” with IEPs to her
fellow Board members, the School Superintendent and other district personnel.
On September 14, 2004, over Nelson’s lone objection, the Board passed the following Reso-
lution in order to stifle Dr. Nelson:
“WHEREAS, the Board has considered the various factors relating to its role in
determining and furnishing suitable educational opportunities for children with
disabilities in light of the decision of the State Review Officer in Appeal No. 04-016.
“NOW, THEREFORE, IT IS RESOLVED, that the Board shall rely on the content
of the written recommendations of the Committee on Special Education and the
Preschool Committee on Special Education when determining what services are
to be furnished to individual students; and it is
“RESOLVED, that no board member is authorized to act on behalf of the Board to
read and review individual Individualized Education Programs (IEPs) of District
students.”
On January 7, 2005 Dr. Nelson was advised that, pursuant to the Resolution, she would no
longer be allowed to read IEPs at the Administrative Offices or anywhere else. On two oc-
casions, Superintendent Raymond Fashano rejected her motion to adjourn a Board meeting
to executive session so that she could read IEPs.
Legal Arguments (briefly)
Dr. Nelson contends that in retaliation for her speech, the Board passed the Resolution preven-
ting her from reading IEPs. She also alleges that these acts “severely obstructed, and continue
to obstruct” her from performing her duties as a Board member such that “the residents of the
Jamestown City School District who re-elected her in May 2004 are effectively denied represen-
tation on the [Board] and thus violate her First Amendment free speech rights.”
Defendants argue that the claim should be dismissed because, as Nelson is a policymaker,
even if the Board’s actions were retaliatory, she is not protected from retaliation based on her
political speech. In support, they cite Camacho v. Brandon, 317 F.3d 153 (2d Cir. 2003).
In opposition, Dr. Nelson argues that Camacho is inapplicable and that the recent Second Circuit
Court of Appeals case of Velez v. Levy, 401 F.3d 75 (2d Cir. 2005), which recognized a school
board member’s claim for First Amendment retaliation, governs this case. In Velez v. Levy, the
Second Circuit considered the First Amendment retaliation claim of a New York City community
school board member. Velez alleged that, in retaliation for the positions she took as a board, the
opposing board members acted to remove her from her position.
The Second Circuit analyzed Velez’s claim, not under the framework for public employee retaliation
cases, but rather as a more fundamental First Amendment retaliation claim. Velez, at 97. The
Second Circuit stated that “a section 1983 claim will lie where the government takes negative action
against an individual because of his exercise of rights guaranteed by the First Amendment.” Ibid.
After considering Velez’s allegations, the Second Circuit held that:
”the First Amendment bars state officials from stripping elected representatives of their
office based on the political views of such representatives.” Id. at 98 (emphasis added).
…. “We cannot permit a state official to oust an elected representative of the people on
the bald ground that she voices unsympathetic political views. “that is, that she engages
in an activity that is at the core of what is protected by the First Amendment. Such an
action by a state official, if allowed, would offend the basic purposes of the Free Speech
Clause,” the facilitation of full and frank discussion in the shaping of policy and the un-
obstructed transmission of the people?s views to those charged with decision making.”
The Decision
Judge Elfvin granted the motion to dismiss Dr. Nelson’s Sec. 1983 claim, saying:
“The instant case is not Velez. Nelson argues that, as she was elected based on
her criticisms of the handling of IEPs and her promise to review them differently,
the Board?s actions that interfere with her agenda have denied representation to
her constituents. While Nelson attempts to equate the defendants? alleged actions
to a “stripping” of her elected office or her “ouster,” the facts as she has alleged
them do not support such an assertion.
“Nelson simply does not allege how she has been prevented from representing the
interests of her constituents. Nelson does not allege that she has been prevented
from speaking at Board meetings or expressing the views she espouses. She
does not allege that she has been prevented from voting on any measure before
the Board. Like the official in Camacho, Nelson remains free to express her views
on this or any other matter before the Board, to vote on the approval or disapproval
of IEPs or any other matter before the Board, and to otherwise faithfully serve and
advocate for her constituents.
“That the other Board members have chosen to disagree with the position advocated
by Nelson and have chosen to implement the Resolution which she opposes does
not mean that she has been rendered incapable of representing her constituents. Her
allegations amount only to a claim that she has been prevented from carrying out the
wishes of those who elected her. Such does not constitute First Amendment retalia-
tion under Velez. Accordingly, Nelson’s claim for violation of her First Amendment
rights will be dismissed.”
The court also stated in footnote 6 that “Nelson’s purported First Amendment claim runs
contrary to the rationale of Velez. If an elected official could assert a First Amendment retalia-
tion claim for every enactment or intra-Board vote that ran contrary to his or her own political
agenda, the already glacial pace of governmental activity would grind to acomplete halt. More-
over, the constant threat of such litigation could hardly be said to facilitate “f’ull and frank
discussion in the shaping of policy and the unobstructed transmission of the people’s views
to those charged with decision making.” Velez, at 97-98.”
The Aftermath ..
This case was originally brought in New York State Supreme Court and was removed
to the federal court because it included a First Amendment claim. The primary claims
in Dr. Nelson’s petition sought declaratory relief — a declaration that she should be allowed
to read each IEP, because she has the right and responsibility under New York law to do
so, as a School Board member. Judge Elfvin declined to deal with those claims, “As such
a declaration is obviously within the purview of the New York State courts and as such courts
are better equipped to issue a declaration as to the requirements of New York law.”
Therefore, although there has been an unfortunate six-month delay since the Motion to Dis-
miss was argued, Dr. Nelson continues to have the option to pursue the state claims. There
“Federal Court Dismisses Lawsuit Against JPS” - but the fight isn’t over yet, Feb. 1, 2006,
subscription needed to access entire article)
Other Shenanighans
It seems clear to this observer that the Jamestown School Board would very
much like to see Dr. Nelson resign her position. An episode that occured in
Nov. 2005, is so suspicious as to seem planned and staged.
Dr. Nelson asked to see Board records on amounts spent on outside attorney
fees. Denied that request, she filed Freedom of Information requests and
was also denied repeatedly over many months. The State Secretary of State
finally intervened on her behalf, telling the Board it had the legal duty to disclose
that information. The Board again stalled and stalled. Finally, they called
Dr. Nelson and made an appointment for her to come to their offices, where
she would only be allowed to read the materials.
When Dr. Nelson arrived, she was told the papers were not ready and she
sat waiting for several hours. Eventually, the Board secretary, Karen Peter-
son, told Dr. Nelson the papers would not be ready that day. When Nelson
asked what was going on, Peterson started screaming that she was being
“intimidated.” Dr. Nelson then followed her into her office, attempting to
calm Peterson down and get an explanation. Peterson continued yelling
and other personnel called the police, who came and arrested Dr. Nelson,
charging her first with harassment and then with felony unlawful imprison-
ment of Peterson in her office. Dr. Nelson, a small woman and grandmother,
has not been able to get the felony charges dropped and the case is still
pending. The Board has done its best to publicize the incident and sully
Dr. Nelson’s reputation. See wgrz.com, “Jamestown School Board Member
Arrested, Nov. 4, 2005; Buffalo News, “School Board Member Denies Con-
frontation, Nov. 8, 2005, $$)
I’m grateful that good citizens like Deann Nelson are willing
to work to improve our schools, communities, governments.
It is sad that so many so-called “public servants” often get in
the way.
which reports that a grand jury refused to indict Dr. Nelson, who has returned
to her School Board duties. The Board President says he intends to hold a
public hearing on charges that Dr. Nelson has engaged in “official misconduct” —
including (really) her taking excessive notes during meetings.
schoool’s out–
a boy follows his dog
into the woods
each stroke of his crayon
his tongue
across his lips
september morning
none of the students
has failed
back to school
tiny ants swarm
a wad of gum
