Tuesday, May 26, 2015

Federal Court Approves Prayer At School Events If Students Selected On Neutral Criteria

A federal court in South Carolina recently found that a school district’s practice of including Christian prayers at elementary school graduation ceremonies violated the Establishment Clause, but approved a revised policy that allows student-initiated prayer at school events if the student is selected to speak based on “neutral criteria such as class rank or academic merit.” The plaintiffs, parents of an elementary student in the district joined by the American Humanist Society, challenged the Greenville County School District’s practice of having graduation ceremonies at a college chapel at which prayer opened and closed the event. (The claim about the location of the event was dismissed earlier.) The court found that the district’s new policy allowing students to initiate prayer did not contravene the Supreme Court’s First Amendment holdings because the district’s revised policy “simply refuses to preemptively restrain a certain type of message, namely religious,” as opposed to dictating when private religious speech would be allowed during school events. The case, American Humanist Assoc. v. South Carolina Dept. of Ed., is available here.

May 26, 2015 in Cases, First Amendment | Permalink | Comments (0)

Friday, May 22, 2015

Recent Special Education Decisions

Supreme Court Declines Review of Case Presenting Circuit Split on IDEA's Stay-Put Provision

As covered by SCOTUSBlog, the Supreme Court declined certiorari this week in a special education case, Ridley School District v. M.R. The case presented a circuit split on the statutory definition of “proceedings” in the Individuals with Disabilities Education Act’s (IDEA) stay-put provision, which determines how long a school district must pay for a student’s current educational placement during a legal dispute. The "stay put" rule safeguards students from having their education disrupted during litigation. The D.C. and Sixth Circuits have held that schools’ stay-put obligation ends upon entry of a final judgment by a trial court in favor of the school district; the Third and Ninth Circuits have held that school districts must continue to pay the costs of private school placements until the exhaustion of all proceedings, including appeals. Several school board associations joined in filing an amicus brief asking the Supreme Court to overturn the Third Circuit’s definition of “proceedings.” The school boards argued that the Third Circuit’s interpretation creates “an incentive for parents to engage in protracted litigation rather than working collaboratively with educators to resolve disputes without delay,” by placing the burden on a school district to continue to pay for alternative education after a district court’s determination that the district has provided sufficient education services.

Second Circuit Allows Amendment of Hearing-Impaired Child's Claim that Girl Scouts Organization Provides Education Services

The Second Circuit reversed a district court’s dismissal of a Section 504 claim brought against the Chicago area chapter of the Girl Scouts for failing to provide a sign language interpreter to a hearing impaired girl. The circuit court found that the plaintiffs’ claim that the Scouts were “principally engaged” in education services was not futile, and thus they should have been allowed to amend their complaint. The plaintiffs, the girl and her mother as next friend, sued the Girl Scouts under the Rehabilitation Act after it stopped providing sign language interpreter services and then, when her mother objected, allegedly retaliated by disbanding the girl’s local troop. The Scouts responded that as a private organization, it was exempt from the Act’s coverage. The Second Circuit found that the Girl Scouts organization was subject to the Act as a private organization that is “principally engaged” in the business of providing education as defined under 29 U.S.C. § 794(b). The Second Circuit interpreted the statutory coverage of the term “education” beyond that provided by a traditional school system. Education, the circuit court reasoned, includes social and education services if they, in the aggregate, make up the primary activities of the private organization. The court noted that Girl Scouts’ literature touts the educational purposes of many of its activities, even in selling cookies. The court therefore reversed the dismissal to allow the plaintiffs to amend their complaint. The decision is Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, No. 14-1729, 2015 WL 2151851 (7th Cir. May 8, 2015).

Seventh Circuit Finds Parent’s IDEA Claim as Preserved, But Pro Se Parent Cannot Represent the Child

The Seventh Circuit recently allowed a pro se mother of a special education student to pursue her parental rights to relief under the Individuals with Disabilities Act. The circuit court vacated the district court’s finding below that the mother did not specifically request reimbursement at a hearing before the Illinois State Board of Education to be reimbursed for the cost of her daughter's speech and language sessions, and thus was not aggrieved by the hearing officer's decision. The Seventh Circuit found that the hearing officer understood that the mother was requesting compensatory relief for speech and language services, and thus the officer ordered the Board of Education to pay for more speech sessions with the same pathologist that the mother had retained. However, the circuit court upheld the district court’s decision to deny the daughter’s claims because of the circuit’s holdings that a nonlawyer parent cannot represent her minor child pro se, a question left open in Winkelman ex rel. Winkelman v. Parma City School District, 550 U.S. 516 (2007). The decision is Foster v. Bd. of Educ. of City of Chicago, No. 14-3035, 2015 WL 2214152 (7th Cir. May 11, 2015). 

May 22, 2015 in Cases, Special Education | Permalink | Comments (0)

Wednesday, May 20, 2015

Fifth Circuit Holds that Houston School District May Not Be Sued Under RICO

The Fifth Circuit decided a novel issue in its circuit on Monday, holding that the Houston Independent School District (HISD) may not be sued under the Racketeer Influenced Corrupt Organizations Act because a governmental organization cannot be shown to have the required mens rea and that the HISD had immunity from RICO’s punitive treble-damages provision. The case arose when a former member of HISD’s Board of Trustees, Lawrence Marshall, allegedly used his position to steer the district’s construction projects to companies in which he served as a paid consultant. When HISD prohibited Marshall from doing that, those companies hired one of Marshall’s business associates who received consulting fees for district contracts, funneling a share of those fees to Marshall. The plaintiffs sued Marshall, HISD, and others in the U.S. District Court for the Southern District of Texas for violations of RICO, § 1983, and state law for breach of contract, estoppel, and civil conspiracy. The district court dismissed the RICO and state law tort claims against HISD, finding that the district was not a proper RICO plaintiff. On appeal, the Fifth Circuit held that a RICO allegation requires proof of an underlying criminal act, and a governmental entity cannot form the required mens rea for a crime. The court also found that HISD, as a  municipal entity, has common law immunity from RICO’s partially punitive treble-damages provision. The court interpreted RICO’s treble damages provisions as awarding damages beyond the amount of actual harm, despite some Supreme Court language that RICO is “remedial in nature.” The Fifth Circuit also held that Marshall was not shielded as a HISD employee against  state law claims. As an elected school board trustee, Marshall was not controlled by or in the paid service of the HISD, and therefore, he was not an employee. Even if he were to be considered an employee under some statutory definitions, receiving bribes, the court wrote, was outside the scope of his employment. The circuit reversed and remanded the district court’s grant of summary judgment against the individual defendants on the RICO and state law claims.

May 20, 2015 in Cases | Permalink | Comments (0)

Tuesday, May 19, 2015

U.S. Supreme Court Denies Certiorari in New Orleans Teachers' Challenge to Termination After Katrina

The U.S. Supreme Court denied the plaintiffs’ certiorari petition in Oliver v. Orleans Parish Sch. Bd. on Monday, ending the class action suit for 7,600 former New Orleans teachers and school employees. The teachers and other school employees claimed that Louisiana violated due process when the state terminated them after Hurricane Katrina and took over of 102 of the Orleans Parish’s 126 schools. Overturning the Louisiana Court of Appeals decision, the Louisiana Supreme Court below held last fall that the plaintiffs’ claims were barred by res judicata and that the Orleans Parish School Board did not violate the employees’ due process rights by failing to recall them after Hurricane Katrina. The Louisiana Supreme Court held that the plaintiffs’ claims were the subject matter of an earlier settlement between the OPSB and the Orleans Parish’s teachers’ union, the United Teachers of New Orleans (UTNO)—which included three persons who were also class members in Oliver case—and thus barred by res judicata. On the due process claim, the court found that the issues presented by Hurricane Katrina were so unique that there were only 526 positions available for the over 7,600 class members. Acknowledging that there was no recall list for teachers temporarily displaced by Katrina, the court found that OPSB’s employee hotline to communicate to determine which employees could return to work when the schools re-opened, while imperfect, was sufficient to satisfy due process. Finally, the court found that the plaintiffs had no constitutionally protected property interest in the right to “priority consideration” for employment with a third party, the Recovery School District. The Louisiana Supreme Court's decision is here.

May 19, 2015 in Cases, News | Permalink | Comments (0)

Thursday, May 14, 2015

Pennsylvania School District Settles Racial Bias Suit

The Harrisburg Patriot-News reports that a racial bias suit against a Pennsylvania school district was settled this week. In 2014, the Webbs, a student and his mother, sued the Susquehanna Township School District after it expelled the student from high school for wearing a multifunction tool that had a knife on it. The student's mother sued when they learned that three white male students were treated differently than the student, who is black. In the other three instances, a white male student brought two airsoft pistols onto school and aimed at other students as they left the building; in the second, a white male student brought marijuana into a classroom; and in the third, a white male student brought a BB gun onto school grounds. On each of those occasions, the school superintendent did not recommend to expel the students. The Webbs sued in federal court claiming disparate treatment and violations of the 14th Amendment, Title VI of the Civil Rights Act, and the Pennsylvania Human Relations Act (PHRA). The Middle District of Pennsylvania dismissed their claims for lack of standing and because the statute of limitations had expired on some of the claims. However, the federal court gave the Webbs leave to amend their claims under the Pennsylvania Human Relations Act (PHRA). Despite the dismissal, the school district reportedly settled the case for an undisclosed amount. The federal case was Webb v. Susquehanna Twp. Sch. Dist., No. 1:14-CV-1123, 2015 WL 871731 (M.D. Pa. Feb. 27, 2015).

May 14, 2015 in Cases, Discipline | Permalink | Comments (0)

Thursday, May 7, 2015

Student's Facebook Post that Teacher "Needs to Be Shot" Ruled Protected Speech

The U.S. District Court for the District of Oregon recently ruled that a school violated a student's free speech rights when it suspended him for posting on Facebook post that his teacher "needs to be shot." The eighth grade student was angry because his parents grounded him after he got a C in her class. The court wrote that the off-campus post post was unlikely to "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the required showing under Tinker v. Des Moines Indep. Cmty. Sch. Dist. The student's post did not announce a specific plan, and the school's choice of discipline, a three-day in school suspension, further convinced the district court that school officials did not take the comments seriously. Although the teacher was apprehensive about the student returning to school, she accepted the school's decision to let the student return. The district court distinguished a 2013 Ninth Circuit case, Wynar v. Douglas Co. Sch. Dist., which upheld a school suspension of a student for his threatening social media post because he detailed plans that targeted specific students. Read the district court's opinion in Burge v. Colton School Dist. 53 here.

May 7, 2015 in Cases, First Amendment | Permalink | Comments (0)

Wednesday, April 29, 2015

Judge Approves Consent Order Aimed at Achieving Unitary Status in Huntsville, Ala. Schools

Last week a federal court approved a consent order to put Huntsville, Ala. on the road to unitary status. The Huntsville schools must still comply with a decades-old federal desegregation order, but the consent order is a "plan to plan" to end the imbalances that led to federal oversight. In its order, the court wrote a message to the district's students in the district, urging them to show openness and patience as the school system rezoned them for new schools. Last year, the district court expressed skepticism about the district's progress toward unitary status, citing among other things, continued racial imbalance in the city's schools, discrepancies in disciplinary rates, and racial achievement gaps on measures of academic performance. Under the consent order, the school system is tasked with making progress in areas identified in the original desegregation order: (1) desegregation of faculty and staff; (2) majority to minority transfers; (3) equity in school construction and site selection; (4) interdistrict transfers; (5) equity in services, facilities, activities, and programs, including athletics and other extracurricular activities; and (6) equity in transportation. The consent order in  Hereford v. Huntsville Bd. of Educ. is here.

April 29, 2015 in Cases, Racial Integration and Diversity | Permalink | Comments (0)

Thursday, April 16, 2015

Female Teacher’s Discrimination Suit Can Proceed Against District Alleged to Prefer Male Coaches as Driver’s Ed Teachers

A federal district court in Alabama recently allowed a female teacher’s gender discrimination claim to proceed upon her sufficient showing that a school district preferred male employees as a driver’s education teachers. A female teacher in Mobile County, Alabama sought a driver’s education teaching position to allow her more free time to pursue coaching opportunities. She was turned down for two driver’s ed jobs and was told by school officials that male employees were preferred because they could also coach male sports. At a motion for summary judgment in federal court, the school district countered the plaintiff's claim, saying that the actual reason for the decisions was that the male employees had “good working relationships with the administrators at each school” and were held in high esteem. The Southern District of Alabama found that the plaintiff showed that the district’s reasons were pretextual because the jobs were never posted or interview procedures followed. The case is Shaw v. Mobile Cnty. Pub. Sch. Sys., No. CIV.A. 14-0111-CG-B, 2015 WL 419805 (S.D. Ala. Feb. 2, 2015).

April 16, 2015 in Cases, Teachers | Permalink | Comments (0)

Legitimate Security Concerns Cannot Override Prisons' Obligation to Provide Special Education Services

The Middle District of Pennsylvania recently held that while special education services can be modified for an incarcerated student who presents security concerns, an institution cannot restrict the student’s access to the extent that it denies his right to a free appropriate public education. The plaintiff, Stephen Buckley, was incarcerated at a restricted housing unit (RHU) at a young adult offender institution. Before his move to the RHU, Buckley was receiving special education services under the IDEA. While in the RHU, Buckley committed assaults and other rule infractions and thus was not permitted to attend the classrooms in the institution. The Individuals with Disabilities Education Act (IDEA) allows incarcerated students' Individualized Education Programs (IEPs) to be modified where the state proves a bona fide security interest that cannot otherwise be accommodated. In keeping with that provision, the prison provided Buckley a teacher at his cell and “self study packets” provided through the tray opening in his cell door. Buckley sued, alleging that that he was being denied a free appropriate public education and requested compensatory education. Buckley argued that the change from his previous IEP to the new arrangement at the RHU essentially eliminated his special education services. The in-cell study was inadequate because the self-study packets were not individualized to him, Buckley claimed, the teachers were only available once or twice per week, and the cellblock was too loud for instruction. The district court agreed, awarding compensatory education and finding that Buckley's “IEP contained no meaningful academic or functional goals, and the record is clear that the cell study program, as implemented, offered no more than a de minimis educational benefit.” The court rejected the institution’s suggestion that Buckley did not show any interest in interacting with the teacher or the self-study packets, noting that “appropriate education under the IDEA [is a right], not a privilege to be taken away.” The court hoped that restoring incarcerated students' opportunity for an education would interrupt “the vicious circle of incarceration for this at-risk population.” The case is Buckley v. State Corr. Inst.-Pine Grove, No. 1:13-CV-2022, 2015 WL 1610446 (M.D. Pa. Apr. 13, 2015).

April 16, 2015 in Cases, Special Education | Permalink | Comments (0)

Tuesday, April 7, 2015

Florida Court Recognizes Special Duty to Protect Students

In 2008 fifteen-year-old Abel Limones collapsed in the middle of a high school soccer game. When he was unable to get up, Thomas Busatta, his coach, ran onto the field to check on Abel. Within a few minutes Abel had lost consciousness and appeared to have stopped breathing. Busatta, who was trained and certified in the use of automated external defibrillators (AEDs), called for an AED. There was an AED in the game facility at one end of the field, however it was never brought to Busatta. EMS responders brought their own AED and were only able to revive Abel almost half an hour after his initial collapse. Due to the delay and a lack of oxygen, Abel suffered severe brain injury, placing him "in a nearly persistent vegetative state that will require full-time care for the remainder of his life."

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April 7, 2015 in Cases, State law developments | Permalink | Comments (0)

Ohio and Washington High Courts Hold that State Laws Allow Disclosures about Teachers

Last week, the Washington Supreme Court held that the state's privacy law did not protect the names of public school employees who are on paid administrative leave during an investigation for misconduct. The case arose when media outlets sought information about district employees on administrative leave, which included two Spokane school employees who, incidentally, are cousins, one a high school counselor and the other a teacher. The employees sued to enjoin the district from disclosing the records, claiming that they were exempt under the state privacy statute as personal information maintained in an employee's file and as records compiled by an investigative agency. The Washington Supreme Court stated that the records were not protected because a "public employer's investigation is certainly not a private matter: it arises exclusively from the employee's public employment." Interestingly, the court drew parallels to Ferguson, Missouri, and what can happen when "public trust can be eroded when the public suspects the government is withholding information to protect its own." The Washington case is Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5. In late March, the Ohio Supreme Court affirmed a court of appeals decision in State ex rel. Quolke v. Strongsville City School Dist. Bd. of Ed., No. 2015-Ohio-1083, holding that the names of replacement teachers were subject to disclosure under the state public records law. After a 2013 teachers’ strike, the president of the Cleveland Teacher’s Union requested the names and identification numbers of all replacement teachers employed by the Strongsville City School District Board of Education under the public records law. The Board argued that releasing the names would violate the replacement teachers' privacy and put them in danger from striking teachers and their supporters. The Board’s concern was not entirely hypothetical, as there were skirmishes between the striking teachers and replacements during the strike that generally were non-physical. A teachers’ organization also posted a “wall of shame” on its website with the pictures of replacement teachers. But those concerns about the teachers’ privacy or well-being ended with the strike, the Ohio Supreme Court stated. Thus, interest in protecting the replacement teachers’ privacy did not outweigh the public interest in the records.

April 7, 2015 in Cases, News | Permalink | Comments (0)

Wednesday, April 1, 2015

Ninth Circuit Upholds in Part Attorney's Fees Against Parent for Frivolous Claim

In C.W. v. Capistrano School District, No. 12-57315 (9th Cir. Mar. 2, 2015), the Ninth Circuit affirmed in part and reversed in part a district court's award of attorney's fees to a school district as the prevailing defendant in special education services case. Cribbed from the court's summary: School districts are rarely awarded attorney's fees, but can receive such fees when a complaint is either "frivolous" or "pursued for an improper purpose." The Ninth Circuit concluded that the complainant's ADA and § 1983 claims were frivolous, but reversed the district court's award of attorney’s fees and costs related to the complainant's claims under Section 504 and the IDEA. In the case, a mother sued the Capistrano, CA, School District to challenge the denial of an independent educational evaluation for occupational therapy for her child, who had special education needs. While litigating her IDEA claim, the mother alleged that her child’s school district violated the IDEA, Section 504, the ADA and § 1983 by improperly threatening to seek sanctions against her and her counsel if they appealed the administrative denial of the child’s IDEA claims. In a letter to the mother's counsel, the district wrote, "the District reserves the right to seek[] sanctions against you and your client if the most recent administrative decision is appealed." The Ninth Circuit noted the mother and her counsel did not file a frivolous complaint under the IDEA by doing what the law permits them to do, which is appeal from a denial of occupational therapy that the mother felt that the child deserved. The circuit court found that the outcome of the ADA intimidation claim and the § 1983 claim were more obvious as lacking any legal foundation, however. The circuit court noted that "[b]y its own terms, protection under the ADA against intimidation does not extend to a plaintiff’s attempts to exercise rights granted or protected by the IDEA," and once the district court told the plaintiff that her claim was meritless under the statute's terms, she and her counsel should not have appealed it on the same grounds. Read C.W. v. Capistrano School District here.

April 1, 2015 in Cases, Special Education | Permalink | Comments (0)

Friday, March 27, 2015

Indiana Supreme Court Decision Allows Districts to Cut School Bus Services

On Tuesday, the Indiana Supreme Court held that the state constitution's education clause does not require school districts to provide school bus services. Indiana's Franklin Township Community School Corp. ended its bus service in 2011 after losing about $18 million of its budget when a cap on property taxes went into effect and local voters rejected a referendum to increase property taxes. Faced with the decision to provide buses or cut staff and classroom resources, the Franklin County Superintendent chose to end transportation. The Township then decided to provide student transportation for an annual fee through a private contractor. In November 2011, parents filed a class-action lawsuit against the Township challenging the constitutionality of the mandatory transportation fee. In 2014, the Indiana Court of Appeals struck down the Township's mandatory  fee as unconstitutional. The Indiana Supreme Court decided whether the state constitution's education clause supported any requirement for free bus services. The state supreme court found no such requirement to provide free school transportation in Indiana's education clause which mandates a “general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.” While the Court acknowledged that its ruling "will inevitably require some families to make alternative accommodations, [] it will not close the schoolhouse doors." After the class action lawsuit was filed, Franklin Township restored bus transportation in 2012, but the case remains important for other districts facing budget shortfalls. Read Hoagland v. Franklin Township Comm. Corp., No. 49S02-1410-PL-643 (Ind. March 24, 2015) here.

March 27, 2015 in Cases | Permalink | Comments (0)

Wednesday, March 25, 2015

Local School Boards Sue Tennessee Over Underfunding

In a fourth challenge to Tennessee's school funding system, seven county boards of education sued the Governor and the State of Tennessee in Hamilton County Bd. of Educ. v. Haslam, filed on March 24. The plaintiffs are asking a state court to find that the state has neglected its duty to fund public education under the Tennessee Constitution. The plaintiffs, according to a release by the Education Law Center, are asking for relief on several claims, including "an unfunded mandate claim [] based on what plaintiffs state are extensive additional and costly responsibilities placed on schools by the state with no funding to cover them." The plaintiffs also allege that the state ignored its responsibility to fund 75% of classroom costs; the plaintiffs allege that the state is only funding about 70%, resulting a $134 million shortfall. The plaintiffs further claim that the state has failed to phase in funding under laws passed to comply with previous judgments in three school funding cases, Tennessee Small School Systems v. McWherter I, II, and III), which they allege resulted in additional funding shortfalls of about $600 million. (For more on the Small Schools litigation, see the National Education Network here.)  

March 25, 2015 in Cases, School Funding | Permalink | Comments (0)

Tuesday, March 24, 2015

Wisconsin AG Petitions In Support of Law Giving Governor Powers in Education Rulemaking

Wisconsin Attorney General Brad Schimel has petitioned the state supreme court to reverse a finding that a new state law unconstitutionally removed powers from the state Superintendent of Public Instruction (SPI) in favor of the Governor. The law, called Act 21, required that the Governor approve the scope and drafts of new administrative rules proposed by the state education superintendent. In February, the Wisconsin Court of Appeals found that Act 21 unconstitutionally took away the SPI’s supervisory rule making power in public education. The case is Coyne v. Walker, No. 2013AP416, 2015 WL 686178 (Wis. Ct. App. Feb. 19, 2015).

 

 

March 24, 2015 in Cases, News | Permalink | Comments (0)

Friday, March 13, 2015

ACLU Sues on Behalf of Teacher Fired for Vegan Advocacy Facebook Posts

The ACLU of Ohio Foundation, Inc., is litigating the case of an Ohio teacher who was terminated after posting comments criticizing dairy farming on his personal social media page. In August 2014, a Title I tutoring teacher Keith Allison showed up for another year of work at the Green Local School District’s elementary school, which is located in an area where dairy farmers make up a significant part of the local tax base. Allison was called into a meeting with the school's principal, who questioned him about a Facebook post he had made over the summer, criticizing the treatment of dairy cows near his home (with pictures that Allison took of baby cows in pens) and encouraging readers to switch to plant-based milks. The principal scolded Allison for his comments, following up with an  email which reportedly stated that "our teachers to really consider the whole community when doing these sort of things [making statements on social media], especially when our biggest tax payers are dairy farmers.” Allison was told that his pay rate would be retroactively lowered for the hours he had already worked, that he would be paid at the rate of a substitute teacher instead of as a Title I teacher, and was eventually terminated. The ACLU, representing Allison, filed suit last week, challenging Allison's termination on First Amendment grounds and stating that state and school officials had "no valid interest that would justify punishing or censoring Allison for his commentary on dairy farming."  A copy of the complaint is available at cleveland.com here.

March 13, 2015 in Cases, First Amendment | Permalink | Comments (0)

Wednesday, March 4, 2015

Supreme Court Hears Oral Arguments to Decide Whether Teachers Act as Law Enforcement Agents When Interviewing Children About Suspected Abuse

Although the confrontation clause case that the U.S. Supreme Court heard this week is not an education case, Ohio v. Clark has important implications for teachers who interview children under abuse reporting statutes. In Clark, the Court will review an Ohio Supreme Court decision that day-care teachers and social workers should be treated as law enforcement agents because of a statutory  duty to report suspected child abuse or neglect. The case arose when teachers noticed that a three year old boy at daycare was bruised and withdrawn. The child reported to teachers that his mother's boyfriend caused the injuries. Further investigation revealed that the boy's younger sister also showed signs of abuse. The teachers and social workers testified at the boyfriend's trial about the child's report of abuse; the boy did not testify because of a state law presumption that children under age ten are incompetent to testify in court. The Ohio Supreme Court found that the teachers'  testimony about the child's statements violated the defendant's confrontation clause rights. Lyle Dennison at SCOTUSblog posted an analysis of the oral argument in the case this week, excerpted below:

Prosecutor Meyer came to the Court with a simple proposition: because the teacher is not a police officer, and not working for the police, she should be allowed to take the stand and recount the boy’s tale.  The Confrontation Clause, he argued, should only bar the use of evidence gathered by government agents if they don’t come to court.  A private citizen, he meant in his closing comment, is “just not the same” as a government agent like a police officer.

But Stanford law professor Jeffrey L. Fisher, speaking for the man convicted for harming that boy, asked the Court to provide a simple opportunity: give defense lawyers the same opportunity to talk with the little boy as the teacher, the police, and the prosecutors had as they prepared evidence for the trial.  There are ways to conduct an interview with even a small child, Fisher said, that will be sensitive and caring, and have a chance to test the reliability of any story the child told. Fisher’s own suggested approach to the Confrontation Clause was that, if an adult has heard the child’s accusations out of court, and was working within a system that ultimately leads those accusations to become evidence of a crime, the Confrontation Clause should govern.

March 4, 2015 in Cases, News, Supreme Court | Permalink | Comments (0)

Fifth Circuit Grants Rehearing En Banc In Off-Campus Student Speech Case

The Fifth Circuit has granted rehearing en banc to review a panel's decision that a school's disciplining a student for off campus rights violated his First Amendment rights. In Bell v. Itawamba Cnty. Sch. Bd., a Fifth Circuit panel found that the school improperly disciplined a public high school student after he posted a rap song on the Internet criticizing two named male athletic coaches and accusing them of sexually harassing female students. The rap song was  composed and posted off campus during a Christmas break. Upon learning about the song, the student was suspended by his high school and was transferred to an alternative school for the remainder of the grading period. Assuming arguendo that the school board could apply a defense under Tinker v. Des Moines Independent Community School District to off-campus speech, the panel found that the school failed to show that the song substantially disrupted the school's work or discipline process or that school officials reasonably could have forecasted such a disruption. The panel further concluded that the song contained no credible threat of violence that would rise to the level of a “true threat.” The panel directed the district court to award nominal damages and to order  the school board to expunge all references to the incident from the student's school records. The  panel decision is Bell v. Itawamba Cnty. Sch. Bd., 774 F.3d 280, 282 (5th Cir. 2014), reh'g en banc granted (Feb. 19, 2015); the Fifth Circuit's rehearing order is here.

March 4, 2015 in Cases, First Amendment | Permalink | Comments (0)

Tuesday, March 3, 2015

Alabama Supreme Court Upholds Tax Credit Law

Most people are hearing about the Alabama Supreme Court for a different reason this week, but the court also upheld the constitutionality of the state's tax credit law for school scholarships yesterday. The state supreme court rejected a challenges to the bill's constitutionality on the grounds that the law diverted  public funds for private education, put more than one subject in a bill, and cost $40 million in annual tax credits. A state judge struck down the Alabama Accountability Act as unconstitutional last spring. The law, called the Alabama Accountability Act, gives tax credits for parents who move their children from failing public schools to private schools. The law's reality as we posted here, is that tax credits do not benefit students in "failing" schools when they have no access to alternative non-failing public schools or private schools in their area. Thus, according to the Alabama Revenue Department, fewer than 100 students in failing schools statewide used the credits to transfer to private schools, despite there being 78 schools on the failing schools list. Read the court's recent opinion here

March 3, 2015 in Cases, State law developments | Permalink | Comments (0)

Thursday, February 12, 2015

New Jersey State Court Finds That Pledge of Allegiance Statute Does Not Violate the State Constitution

A New Jersey Superior Court found this month that a state statute requiring schoolchildren to recite the pledge of allegiance (and its "under God" phrase) did not violate the state constitution's equal protection and establishment clauses. Given that the Massachusetts Supreme Court decided a similar case last May (Jane Doe v. Acton-Boxborough Regional School District), the more recent ruling adds to the cases finding that the pledge of allegiance ceremonies in schools are constitutionally permissible. In the February 2015 case, American Humanist Ass’n v. Matawan-Aberdeen Reg. Sch. Dist., the lead plaintiffs were parents of schoolchildren who challenged New Jersey's pledge statute that required schools to include a salute to the U.S. flag and recitation of the pledge of allegiance each day. The plaintiffs, along with the American Humanist Association, alleged that children who do not participate are nevertheless having the pledge's religious language  imposed on them and could suffer exclusion if they choose not to participate. The state court found that the statute did not implicate children's religious freedom because participation in the pledge is voluntary. The court also found that expunging the words "under God" from the pledge was unnecessary because the purpose of public schools is to foster ideas without requiring students to adhere to them. The court rejected the equal protection claim, finding no proof that the plaintiffs' children were discriminated against because of their beliefs. Read American Humanist Ass’n v. Matawan-Aberdeen Reg. Sch. Dist., No. 1317-14 (N.J. Super. Ct. Feb. 4, 2015) here.

February 12, 2015 in Cases, First Amendment | Permalink | Comments (0)