Category: Discrimination

Beginning in 2013, Mr. Gilbert’s law firm, Gilbert McWherter Scott Bobbitt PLC, embarked upon what would become a civil rights project of integrating children with intellectual disabilities into regular public school classrooms. Too often, they found, these children were educated in separate classrooms, with only other children with disabilities.

Mr. Gilbert examined the research, including international studies where children with intellectual disabilities were offered a choice: an opportunity to be educated with their non-disabled peers or, if the families wanted, in classrooms designed solely for children with disabilities. The results of these longitudinal studies showed greater advances for the children who were integrated with nondisabled peers. They had higher skill sets, better speech, improved behavior because of their non-disabled peer models, and were more than a grade-level ahead.

Taking this research into the United States through Tennessee, Mr. Gilbert realized that the educational funding system from the state incentivized the creation of separate classes. Put simply, the funding system financially rewards school systems for the creation of separate classrooms rather than integrated ones. Thus, Mr. Gilbert’s law firm set out to change the funding system while working on cases of segregation of children with Down syndrome.

LH v. Hamilton County

The first case, LH v. Hamilton County, involved a second grade student with Down syndrome who was ably performing in the regular education classroom. However, in third grade, state standardized testing scores came into effect, and the school attempted to remove LH to an entirely separate school, in a different zone, for only children with disabilities.

Mr. Gilbert hired some of the best experts, both internationally and in the United States. This included the founder of Down Syndrome Education International, Dr. Sue Buckley of the United Kingdom. A five-year legal fight for LH led to multiple reported decisions, culminating in a decision by the Sixth Circuit Court of Appeals in favor of LH. L.H. v. Hamilton Cty. Dep_t of Educ._ 900 F.3d 779

Thus, LH established the rules for integration, including how students with intellectual disabilities are entitled to modified work, differentiated instruction, an aide as needed, and they do not have to meet the same grade level standard as students without intellectual disabilities.

LH became the law governing Tennessee, Ohio, Michigan, and Kentucky. It resulted in damages and tuition reimbursement to the family of over $200,000, plus legal fees and expenses of $350,000.

JA v. Smith County

After LH, Mr. Gilbert continued his work with very young children with intellectual disabilities. In a federal case in Nashville District Court, he established that it is discriminatory for a school system to put its resources into a special education classroom intended mostly for students with disabilities, to the detriment of the regular education classroom. J.A. v. Smith Cty. Sch. Dist._ 2018 U.S. Dist. LEXIS 21

In JA, Mr. Gilbert successfully argued the school system propagated a myth that children with intellectual disabilities should be taught separately. He explained how children with disabilities are entitled to supports in regular education such as speech and language supports, along with behavioral supports, before a school system can consider removing a child from the regular education classroom. To receive an “appropriate” education, the supports must be delivered first.

A.A. v. Walled Lake

Recently, Mr. Gilbert took the non-segregation fight to Michigan where he was asked to assist the Michigan Protection and Advocacy (MPAS) in a case just outside of Detroit. A.A. v. Walled Lake Consol. Schs_ 2017 U.S. Dist. LEXIS

After four trips to Detroit, a three-year litigation culminated with a federal trial in 2019. On the first day of trial, the parties were able to settle with a three-year plan that involves mandatory district training on inclusive practices, plus payment of a private school from kindergarten through eighth grade, along with $250,000 in fees and costs.

As a result of these cases, Mr. Gilbert has begun working with the National Down Syndrome Society (NDSS) and other organizations to formulate a guidance for parents, teachers, and school systems concerning the proper legal analysis for integration of children with intellectual disabilities.

It is the hope that these cases, and the guidance, will ensure that children with intellectual disabilities can be taught with their nondisabled peers to the maximum extent appropriate, the vision of the Individuals with Disabilities Education Act (IDEA).

Related Content

Integration of Children with Developmental Disabilities in Social Activities

Integration of Children with Disabilities into School Community

Benefits of Integration of Students With Disabilities

The Impact of Inclusion on Students With and Without Disabilities and Their Educators

Teacher Perceptions of Mainstreaming/Inclusion, 1958–1995: A Research Synthesis

Including Students With Developmental Disabilities in General Education Classrooms: Educational Benefits

The Perspectives of Students With and Without Disabilities on Inclusive Schools

If your child has been isolated or removed from a classroom because he or she has an intellectual disability, you have options to explore. Please contact Justin Gilbert at 888.966.9731, or fill out this contact form, and reserve a consultation time at one of our office locations. The Gilbert Firm maintains offices in Nashville, Chattanooga, Memphis, Jackson and Knoxville, and advocates for clients across Tennessee and the Southeast.

 

All students in the U.S. are entitled to a free public education. It does not matter what race, religion, ethnicity, sex, or background a child has; his or her right to public education is protected under various state and federal laws. When a child has been denied her right to this education because of systemic and illegal racial discrimination, the family has recourse through the laws to uphold their child’s rights.

Under Title VI of the Civil Rights Act of 1964, no program that receives federal funding may engage in discrimination because of race, ethnicity, or color. That is why Justin Gilbert of the Gilbert Firm has filed a lawsuit in Chattanooga’s U.S. District Court against Bledsoe County Schools and its director, Jennifer Terry, on behalf of a student who was subjected to harsher punishments, we believe, because of her race.

An excessively harsh punishment

On January 24, 2018, our client – who is biracial, referred to from here on as T.A. – was in the Bledsoe County High School (BVHS) cafeteria. Another student called T.A. the “n” word. T.A. struck the student who used the slur. She was suspended for three days for fighting, which is the school’s policy.

But the next day, T.A.’s mother, M.A., received a letter from Jennifer Terry, stating the student’s “suspension actually would be much longer: 365 calendar days. As a result… the student likely would fail her junior year and have to wait an entire 12 months to repeat it.” Our clients appealed this decision, but it was upheld by the Superintendent. Ms. Terry, per our complaint, “claimed this grossly excessive suspension was ‘in accordance with Tennessee State Law,’ as if her hands were somehow tied and she lacked discretion to consider the overarching circumstances of racism. Tennessee State Law does not require such an action, divorced from context and without any discretion.”

A violation of our client’s rights

The suspension of a full calendar year is excessive in any circumstances. It is more so when you consider the following:

• The school had been informed numerous times that T.A., on a weekly basis, was subjected to racist comments and remarks. The school claimed to have put this information in a “file,” but that file has not been produced. There is no proof that such a file even exists.
• The brother of the student who called T.A. the “n” word had received a “brief suspension” for calling T.A. the very same epithet.
• The parents of the student accused of using the racist slur also referred to T.A. and her brother as the “n” word while they were in the school. (They were there because parents must be informed when a fight happens in school.)
• Those same parents, while M.A. was speaking to school officials, went onto Facebook, where they not only sought to find out where M.A. was, but also posted a picture of a noose. That noose was hanging in their own front yard.
• BCHS officials specifically warned M.A. about the “racism within the family.”

It is our belief that the “overly harsh, punitive suspension/expulsion of T.A. for a full calendar year amounted to retaliation against T.A. for complaining about, reporting, and opposing racial discrimination and harassment, in violation of Title VI,” per our complaint. That is why we have demanded a jury trial, so that we can hold BCS and Ms. Terry accountable for their failure to put an end to the systemic racism our clients endured, and for failing to protect our client and her rights under the law. As Justin Gilbert told the Chattanooga Times Free Press, “the overly harsh suspension has caused the student to suffer ‘emotional distress, humiliation, and deprivation of her right to participate in regular public education free from racial harassment.’”

This is not unique to Bledsoe County

What happened to T.A. is abhorrent, but it is hardly an isolated incident. The Huffington Post reports:

• “Black students and students with disabilities routinely receive harsher punishments at school than their peers.
• The latest figures show that a growing number of black students are disproportionately subject to school-based arrests and referrals to police.
• Black students are also disproportionately suspended and expelled.”

At the Gilbert Firm, we stand up for Tennessee students who have been denied access to their education, and whose rights have been violated by school districts, administrators, teachers and other students. If you have been a victim of racial discrimination, or have in some way had your right to a free public education denied, we want to help. To work with Justin Gilbert and the members of his team, please call 888-996-9731, or fill out our contact form.

There’s something charming about Airbnb, a “home sharing” company that allows travelers to rent unique accommodations from regular folks across the world. Why spend your vacation money on an expensive hotel when you can simply stay in someone’s apartment for a week, right? The renter makes a few dollars and has his or her space protected, and you save a few dollars while enjoying a more private (and perhaps more luxurious) place to stay. We can understand the appeal.

The problem that Airbnb faces now, however, is one that ride sharing companies (like Uber and Lyft) have been battling in the news for months – namely, that there is no real way to ensure that the people who rent these spaces to others are following the rules and guidelines set up by the company. In this case, it appears that housing discrimination is rampant – and Airbnb does not seem to know how to fix it.

It’s not that they’re not trying, per se. Fortune reports that “During its annual engineering conference in San Francisco, co-founder and CEO Brian Chesky declared that the company had started a 90-day review of its entire service and that, ‘We have zero tolerance for any discrimination.’” The company has even hired former Attorney General Eric Holder to help it create a new anti-discrimination policy. It’s also working with a former head of the Washington, D.C. branch of the American Civil Liberties Union, Laura Murphy, who is “leading the review process,” according to Airbnb’s blog. The company seems to be taking all the right steps, but the question remains – will it, can it be enough?

It’s a tougher problem to tackle than you might think

Before Airbnb can really tackle its issues with discrimination by its users, it may need to look to its own house. According to the company’s assessment, 63% of its workforce identifies as “White,” 7.1% as “Hispanic or Latino,” and only 3.9% as “Black.” One might draw the conclusion that because the company’s internal structure is not diverse, it has not placed enough emphasis on equality in its policies, either.

A recent article on Buzzfeed supports that lack of emphasis as well. One of their news reporters claims that “at no point during Airbnb’s roughly 15-minute, 24-part registration process does the company detail [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][its anti-discrimination policy], or even inform potential hosts of its existence,” saying it is only at the end of the registration that hosts “are asked to agree to follow local laws on short-term rentals. We are told that regulations vary by city, and that it is the responsibility of the host to know what they are. And we are reminded that these laws are also totally different from Airbnb’s own policies.”

Finally, Airbnb must contend with the fact that there may be no way to completely weed out individual hosts during the registration process, even if that process is revamped. It is certainly easy enough to lie on the application to be a host, and hosts should have the right to accept or deny applicants – after all, these are their homes they are renting out to strangers.

Issues of discrimination can be handled through the justice system more readily when companies are regulated by state or federal laws. Cases such as these, however, may prove to be more of a challenge. This is why you want an experienced Tennessee anti-discrimination attorney on your side if you have been the victim of harassment or discrimination. Justin Gilbert, Jonathan Bobbitt and the team at the Gilbert Firm have the skills and resources you want on your side when you face an uphill battle for justice. To meet with one of our attorneys, please call 888.996.9731 or use our contact form, and schedule your consultation at one of our offices in Nashville, Chattanooga, Memphis, Jackson or Knoxville.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Jerton Evans has been coaching football a long time. He spent his college years playing for the University of Virginia, but when his professional career stalled, he obtained a degree and began picking up coaching jobs in different areas. In 2015, he took a position at Claiborne High School, where he taught English and coached the Bulldogs football team.

On April 29, 2016, Jerton Evans was fired from both positions, teacher and coach. He has since filed a wrongful termination lawsuit, according to Claiborne Progress, asking to “be restored to the same or comparable employment,” or, if that proves “impractical… [to] be awarded front pay for his wrongful termination.” According to Mr. Evans, he lost his position because he is black, and his termination is a violation of the Tennessee Human Rights and Disability Act. His lawsuit seeks damages up to $750,000.

Under the Act, which is very similar to Title VII of the Civil Rights Act of 1964, an employer in Tennessee cannot “fail or refuse to hire or discharge any person or otherwise to discriminate against an individual with respect to compensation, terms, conditions or privileges of employment because of such individual’s race, creed, color, religion, sex, age or national origin.” Mr. Evans alleges that the Board of Education singled him out because of his race, treated him differently because of his race, and attempted to “reduce [his] job functions” in a way that would encourage him to leave the position voluntarily.

The case is complicated

Mr. Evans did not give examples of the discriminatory practices against him in his statement (which, as employment attorneys, we agree was the right thing to do). But the lawsuit itself may prove more complicated than you think. First of all, the Bulldogs only won two games while he was Head Coach. A case could be made that he failed in that role, and the school was right to let him go. On the other hand, Mr. Evans almost tripled the amount of students involved in the football program when he started as Head Coach, bring the number from 13 to 36. It takes more than a year to train new players, and nearly 2/3 of his team was new.

He also made a noticeable amount of purchases for the football team, despite not having a budget for those purchases. However, Mr. Evans claims that all purchases were approved by his principal at the time, Jody Goins, and that no further purchases were made once Claiborne’s new principal issued a freeze on accounts.

Furthermore, no mention of Mr. Evans’ ability as an English teacher is mentioned by him or by the school in the news articles, and yet he lost both positions. He was replaced as Head Coach with Nathan Medlin, who had been hired in April to coach the girls’ basketball team. So the school has admitted (through deeds, if not words) that the two positions do not need to be posted together; after all, they simply gave the position away to another employee of the school. While much has been made of Mr. Evans losing the position of Head Coach to a white colleague, what we would like to know is, why did he lose his position as English teacher as well? If one former student interviewed by WATE.com is correct, then Mr. Evans took his role as an educator seriously, and was beloved by his students.

We will be watching this case closely, because we understand the challenges involved in wrongful termination lawsuits. At the Gilbert Firm, we routinely fight against injustices done to Tennessee employees, and advocate on their behalves. If you have been wrongfully terminated because of your race, your gender, your religious beliefs, or for any reason at all, we may be able to help you. We invite you to call 888.996.9731, to contact Justin Gilbert, Michael Russell or Jonathan Bobbitt, or to use our contact form to make an appointment with an experienced Tennessee discrimination attorney at one of our offices in Nashville, Chattanooga, Memphis, Jackson or Knoxville.

The Supreme Court is called upon to handle some of the most complex cases of our time. As it turns out, we need them to handle cases where common sense should have taken care of the problem in the first place.

A New Jersey police detective named Jeffrey J. Heffernan did a favor for his elderly mother; he picked up a sign for a mayoral candidate that she could put on her property to show her support. Mr. Heffernan was reported to his supervisor for the sign, and then demoted. Mr. Heffernan claims this is because his superiors believed the sign was for his own use and reflected his support for a particular political candidate.

This seems like an easy case, does it not? Mr. Heffernan could simply explain that the sign was for his mother – no harm, no foul. Instead, he was demoted to patrol officer. In the words of Justice Breyer, “Heffernan’s supervisors made a factual mistake” by assuming his “overt involvement” in the mayoral candidate’s campaign. Mr. Heffernan sued, lost and appealed. The Supreme Court found for Mr. Heffernan and remanded the case “to the lower courts to explore whether the city might have demoted Mr. Heffernan on other, lawful grounds,” as reported by the New York Times.

Why is this case so important?

For the first time, the Supreme Court ruled that an employee is protected if the employer believes that an employee engaged in protected activity, even if he or she did not.

Let us start with five basic truths:

1. Heffernan is employed by the Paterson Police Department.
2. He is also a U.S. citizen, and therefore protected by the First Amendment.
3. The First Amendment protects political speech.
4. A lawn sign supporting a particular political candidate counts as speech, and is therefore protected.
5. Heffernan was demoted by his superior at the Paterson Police Department for allegedly engaging in political speech through the use of a lawn sign, even though the sign was for his mother.

The retaliatory actions of the Paterson Police Department are illegal under the First Amendment. As a general rule, a public employer cannot retaliate against someone because he or she exercises his or her First Amendment rights (speech, political participation, association, etc.). But what if an employer mistakenly believes that an employee engaged in such activity, but he or she really did not, as is the case here? The PPD, like so many other employers, defended their choice by saying that technically, the employee did not engage in “protected activity.”

In other words, Mr. Heffernan was not exercising his First Amendment rights to free speech, and therefore was not engaged in an activity protected by the First Amendment. To that end, he should not be able to prevail in his claim that his demotion was retaliatory. The lower court agreed. The Supreme Court did not.

This ruling is so important because as “obvious” as the answer might seem to an outsider, cases like these take place all around the country every day. We have a long and complicated history with political speech, but we also have the right to engage in it. Will it turn out that there is an underlying cause for why Mr. Heffernan was demoted? Perhaps. But if the only reason was retaliation against an employee who may or may not have been engaging in a federally protected activity, then this Supreme Court ruling could ripple throughout the country, giving support to employees everywhere who fear speaking out in case it costs them their jobs. This decision sets a precedent for protecting workers’ rights, because as Justice Thomas says, “an attempted violation of an employee’s First Amendment rights can be just as harmful as a successful deprivation of First Amendment rights.”

We could not agree more.

The Gilbert Firm is recognized throughout Tennessee for its advocacy on behalf of workers. If you have been the victim of discrimination or harassment, or if you believe that you were wrongfully terminated for your job, we may be able to help. To schedule a consultation with Jonathan Bobbitt, Justin Gilbert or an employees’ rights attorney in Nashville, Chattanooga, Memphis or Jackson, please contact us.

#employeerightsattorney #njpoliceofficer #demoted

The U. S. Justice Department has found North Carolina’s anti-LGBTQ legislation to be discriminatory, and a violate of people’s civil rights. You can read more about it in this Associate Press article

The Gilbert Firm applauds the U.S. Justice Department for this move. We invite you to read our own take on these laws, and to contact the firm if you believe you have been a victim of discrimination.