Friday, September 12, 2014
Parents of children in the embattled Philadelphia school system sued state education secretary Carolyn Dumaresq Tuesday, claiming that she has failed to address their concerns about overcrowding, limited curricular offerings, lack of counselors and school nurses, and poor toilet facilities in the schools. Philadelphia parents and the advocacy organization, Parents United for Public Education, asked the state court to order Secretary Dumaresq to investigate the hundreds of parent complaints of "massive deficiencies in city schools." In a media release about the case, Education Justice, a program of the Education Law Center, blames the schools' deteriorating condition on shortfalls in aid to Philadephia schools since the state's 2001 takeover. The annual budget shortfalls force the district's schools to operate on what the lawsuit's plaintiffs call a "Doomsday Budget." Read the complaint in Allen v. Dumaresq here.
Wednesday, August 20, 2014
A Louisiana judge yesterday enjoined Gov. Bobby Jindal's move to block the implementation of the Common Core standards in Louisiana. The judge's grant of a preliminary injunction in favor of a New Orleans charter school group and the state Board of Elementary and Secondary Education comes after Gov. Jindal threatened to cancel the state procurement contract with with the Partnership for Assessment of Readiness for College and Careers (PARCC), the testing group that develops exams based on the standards. In the suit, Jindal argued that the BESE violated state procurement law in its contract with PARCC and delegated its authority to set education policy to an outside party. Gov. Jindal's position conflicted with that of state education superintendent Jim White, who is a Jindal appointee. Gov. Jindal became a staunch critic of the Common Core standards this year, saying that the standards reflected the federal government meddling in state education. Judge Todd Hernandez cited the disruption to education at the start of the school year as influencing his decision, writing that "[t]he loss of time is irreparable. With each passing day teachers and parents lose time preparing students for high stake testing, and there is a lot riding on the student's successful performance on these tests." Gov. Jindal's staff told the New Orleans Times-Picayune that he will appeal. Read the opinion here.
Wednesday, July 30, 2014
The D.C. federal district court granted summary judgment for the D.C. Public Schools (DCPS) in a lawsuit that alleged that DCPS discriminated against minority students by closing schools in minority neighborhoods while allowing predominantly white schools to stay open. The suit's plaintiffs, parents of schoolchildren in the affected districts, also alleged that the school closures funded performance bonuses for teachers in disproportionately white schools and the closures are intended to expland charter schools, which, in turn they allege, are themselves discriminatory institutions. DCPS said that it closed 15 schools and plans to close more because of low enrollment. DCPS said that it would reallocate the savings to put students in more modern facilities and create more programs for the remainining schools. The court rejected the plaintiffs' arguments, stating that both white and minority schools have closed for low enrollment and attributed the pattern of closures in minority areas as "residential segregation, along with changing population patterns, that is largely to blame for the disparities in the closures.” Noting that the school-closure plan was facially race neutral, the court found that the plaintiffs failed to prove that the District’s plan was applied differently because of students’ race or motivated by discriminatory animus. While all of the schools set to be closed are in majority-minority, lower-income neighborhoods, the court noted that the schools' have been "drained of their students by the increasing popularity of charter schools," with 40%-50% of schoolchildren in those areas now attending charter schools. The federal district court found that DCPS could not be found to be "discriminating by attempting to provide all children with access to higher-achieving schools." Finding that DCPS's stated goals-- to increase efficiency and improve the District's overall school services -- were justifiable, the court dismissed the plaintiffs' Title VI and Equal Protection claims. Read the opinion in Smith v. Henderson, No. 13-420 (D.D.C. July 18, 2014) here.
Tuesday, July 22, 2014
Indiana School District Not Entitled to Summary Judgment on Discretionary Immunity Claim In School Shooting Case
The Indiana Court of Appeals recently ruled that a negligence claim could go forward against a school district for failing to protect two victims of a school shooting. The case arises from a shooting in Martinsville West Middle School, Indiana, after a student, Phelps, shot two students, C.J. and B.K. The two injured students, through their parents, sued the Martinsville Metropolitan School District claiming that the district failed to protect the students from Phelps by negligently leaving a school door unlocked that allowed Phelps to enter with a gun. The students alleged that the district failed in its duty of care by failing to warn staff that Phelps posed a threat and failed to tell staff to look for Phelps on school grounds after he was suspended and to call 911 if Phelps was spotted on school property after he had been banned from school grounds. The school district lost its motion for summary judgment before an Indiana state court and appealed. The Indiana Court of Appeals affirmed the lower court’s denial of summary judgment, finding enough evidence to show that the district was not immune from liability under the Indiana Tort Claims Act and that the School District did not breach its duty to C.J. and B.K. The Court of Appeals also rejected the district’s argument that C.J. was contributorily negligent for failing to alert school authorities that Phelps had made a threat against him. The Court of Appeals concluded that the school principal’s safety plan did not entitle the district to discretionary function immunity under the Indiana Tort Claims Act because the school district was the ultimate policy-making body. While the school principal had authority over the operation of the school, the principal had no policy-making authority. The appellate court further determined that the case had genuine issues of material fact on the negligence claims because the district did not prove as a matter of law that the shooting was unforeseeable. The court noted that “Phelps had a lengthy history of serious misbehavior in school; threatened to blow up the school; and was on school grounds, presumably in close proximity to the personnel monitors, for thirty minutes prior to the shooting, ... and had made threats against C.J., of which at least one  teacher was aware.” Given these facts and the court’s stated reluctance to find summary judgment in fact-intensive negligence claims, the Court of Appeals held that that the question of breach of duty was best left to a jury. Read Metropolitan Sch. Dist. of Martinsville v. Jackson, No. 55A01-1304-CT-182 (Ind. App. Ct. May 19, 2014) here.
Thursday, July 17, 2014
A mysterious group called Cal200 has filed class action lawsuits against 3 dozen California school districts for failing to providing students with the 200 minutes of PE every 10 days required by state law (an average of 20 minutes a day). Cal200 has no apparent connection to education or the school districts that it is suing, which include Los Angeles Unified — the second-largest school district in the nation — San Francisco Unified, Riverside Unified, San Bernardino City Unified, Palm Springs Unified, and Desert Sands Unified. Cal200's president has refused to provide details about its membership or history. Little information is available on Cal200's website, leading the president of the Palm Springs Teachers Association to conclude that "this lawsuit is low-hanging fruit. Everybody knows that PE has been pushed aside. People saw this coming, and it was avoidable." In April, a risk management organization warned California school districts about Cal200 -- that the organization requests teachers' lesson plans through a public records request, then sues based on the information provided. The Desert Sun reports:
A few years ago, as the economic recession whittled away at state education funding, many elementary schools shifted more of the responsibility for PE onto classroom teachers. Under this system, students would spend a limited amount of time with a specialized PE teacher once or twice a week, and then their regular teacher would add more physical activity into the classroom routine.
The plan works on paper... but in reality, many teachers are stretched too thin to provide the PE minutes. Teachers are under constant pressure to produce high-testing students, so some have sacrificed PE minutes so they could have extra time for English or math[.]
Read more at the Desert Sun here.
The U.S. District Court for the Middle District of Florida dismissed a suit against the Orange County School Board (OCSB) earlier this month, finding that the claim that the Board prohibited distribution of anti-religion materials was moot. An advocacy group, the Freedom From Religion Foundation, filed the federal complaint after the OCSB did not allow the group to hand out flyers in schools that criticized various religions. The Foundation charged that the OCSB's restriction was viewpoint discrimination because the OCSB allowed a group called the World Changers of Florida to distribute copies of the Bible. The OCSB, in explaining the different treatment, cited a consent decree from another Florida county school board to allow World Changers to distribute Bibles on school grounds (none of the parties in the Orange County case were parties to the prior consent decree). The Orange County case was mooted, the Middle District found, because the OCSB stated "that each of the materials plaintiffs sought to distribute will be unconditionally allowed" and thus the prohibition that gave rise to complaint was unlikely to reoccur. Read the district court's decision in Freedom From Religion Foundation v. Orange County School Board at Courthouse News Service here.
Wednesday, July 9, 2014
The New York Court of Appeals recently struck down a local cyberbullying ordinance enacted by the Albany County Legislature on First Amendment overbreadth grounds. In 2010, the Albany County Legislature adopted a new misdemeanor offense — cyberbullying — defined as "any act of communicating . . . by mechanical or electronic means . . . with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person." A high school student was prosecuted under the statute after he anonymously posted photographs of his classmates and other minors with sexual captions attached to the pictures. The student pleaded guilty to one count of cyberbullying but reserved his right to raise his constitutional arguments on appeal. On appeal, the Court noted that the statute "create[d] a criminal prohibition of alarming breadth" that "criminalize[d] a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult." The county government conceeded on appeal that the ordinance was overbroad and thus limited protected free speech, but argued that the law could be saved because certain sections passed strict scrutiny review, namely the prohibitions against disseminating sexually explicit photographs, private or personal sexual information, and false sexual information with no legitimate public, personal or private purpose. Those sections were justified, the County argued, by a compelling government interest and were narrowly drawn to serve that interest. The NY Court of Appeals declined to save the non-infringing sections of the ordinance, finding that the law's text "envelops far more than acts of cyberbullying against children by criminalizing a variety of constitutionally-protected modes of expression" and that the Court could not rewrite the law without encroaching on legislative power and modifying the legislature's original intent. Read the Court's opinion in People v. Marquan M. here and Eugene Volokh's comments on the case here.
Monday, July 7, 2014
A class action suit recently filed in federal court alleges that students with mental health needs are being "warehoused" by the Springfield, MA school district without educational opportunities or therapeutic supports. The suit was filed by the Parent/Professional Advocacy League (PPAL), a grassroots organization that focuses on mental health issues, on behalf of students at Springfield's Public Day School. The suit charges that the school uses "behavior control using drastic methods including dangerous physical restraints, forced isolation in padded rooms and repeated arrests and suspensions for minor offenses." The plaintiffs claim that the Day School's students are being segregated in violation of the ADA and instead students could be educated in neighborhood schools with reasonable modifications and services. The Day School offers few of the extracurricular activities and vocational opportunities available to children in neighborhood schools, the plaintiffs also argue. The complaint further alleges that the effects of hyper-discipline and isolation on the students contributes to the Day School's high drop out rate of 41% in 2013-14 (compared to the overall 6.5% rate in Springfield's other schools). The PPAL and the students are being represented by attorneys from the Bazelon Center for Mental Health Law, the Center for Public Representation, and Boston law firm Bingham McCutchen. Read the complaint in S.S. v. City of Springfield here.
Thursday, July 3, 2014
The Eleventh Circuit Court of Appeals recently held that a school employee’s speech, made while on leave from his school district serving as the president of the Georgia Association of Educators (“GAE”), was made in that role rather than as a school district employee. The circuit court thus overturned on First Amendment grounds a lower court's summary judgment ruling for the school district. The case arose when Richard Hubbard, who had been an assistant principal employed by the Clayton County (Georgia) School District, was elected to be president of the GAE. Hubbard was retained as a district employee to preserve his retirement status and benefits, but was considered “on-loan” to the GAE, which reimbursed Hubbard’s salary and benefits to the district. During his tenure as GAE president, the Clayton County School District had an accreditation crisis. Hubbard commented to the media that if certain allegations made against the Clayton County School District about the accreditation investigation were true, the school board should step down. Following those comments, the Clayton County School District voted to discontinue any employee leave that was not specifically allowed by Board Policy, including Hubbard’s “on-loan” arrangement. Hubbard resigned as a school employee and sued the district in federal court. A federal district court found in favor of the school district on summary judgment, deciding that Hubbard was speaking pursuant to his official duties for the school district and thus had no First Amendment protection under Garcetti v. Ceballos. The 11th Circuit disagreed, finding that Hubbard’s speech was made in his capacity as president of GAE, and thus his speech did not fall under Garcetti. The 11th Circuit noted that Hubbard was only technically an employee of the school district since he had no employee assignments or responsibilities to the district while “on-loan” to GAE. Read Hubbard v. Clayton County School District here.
Tuesday, July 1, 2014
A U.S. District Court Judge pulled few punches yesterday in rejecting Huntsville, AL's attempts to rezone its school districts in the 51-year-old desegregation lawsuit, Hereford v. Huntsville. The Huntsville city school board moved the U.S. District Court to approve a proposed student assignment plan. Instead, U.S. District Judge Madeline Hughes Haikala took the opportunity in an 107-page opinion to "chart a course towards a declaration of unitary status," something that school districts in desegregation suits are sometimes reluctant to pursue. In Hereford, Huntsville City Schools proposed to redraw school zone lines and reassign students after new school construction and closures. The U.S. Justice Department objected, arguing that the plan would combine two majority black high schools and result in studnts being placed in more segregated environments. The court not only agreed with the DOJ's assessment, but also gently chided the Justice Department for not being tougher with Huntsville as racial inequities have crept into the school system in reading and math proficiency rates, graduation rates, and AP class assignments during its decades of oversight. The court also tapped Huntsville City Schools on the wrist for accusing the DOJ's alternative student reassignment plans on its website as being needlessly complicated, saying that the DOJ plan would result in numerous feeder splits (the court noted that the government's plan in fact has none) and issuing a misleading warning that the district would lose Title I funding under the DOJ plan. Judge Haikala ordered the school board to take down the misleading information about the plans. Ultimately finding problems with both parties' proposals, the court sent the parties back to the table, this time with a magistrate judge as a mediator. In the opinion, the court outlined the "ABC's of Public School Desegregation in the 21st Century" to work towards the present problem - school rezoning - and to resolve the decades-old problem - developing an equitable and unitary system: A for attendance zones; B for building a unitary system; and and C for "for Conduct that Demonstrates Good Faith." The latter point appears to result from the court's observation that Huntsville City Schools have not been fully candid about its reasons for rezoning. The court cited a statement made by the board superitendent in an unguarded moment that students from the predominantly African-American high school “[would] be going into schools that are not accustomed to dealing with students who are below grade level.” Read the opinion in Hereford v. Huntsville here.
The National Consumer Law Center previously requested information from the Department of Education on "the agency's financial incentives and oversight over private collection agencies it contracts with to recover outstanding student debt." The Department responded with a set of documents that NCLC says were overly redacted and under-inclusive. In other words, NCLC argues they did not receive what they asked for and were entitled to under the Freedom of Information Act. NCLC has now brought suit against the Department in federal district court of Massachusetts.
Friday, June 13, 2014
Putting Louisiana's Education Pieces Together?: Discipline, Vouchers, Data, and the State Dept. of Ed.
In the wake of the recent filing of civil rights complaints in regard to discipline in New Orleans charter schools, there is now a call for the state superintendent of education to resign. A local blogger, whose veracity I neither doubt nor affirm, suggests that are other problems of disfunctionality at the Department itself. His story alleges that there is a data crisis at the Department. In particular, he asserts the data is neither secure, nor accurate, and the Department, thus far, has been unable to clean it up. If true, his story adds important context to the school voucher fight between the Department (and Jindal) and the US DOJ's equal educational opportunity section. As readers may recall, that fight ultimately came down to access to basic information and data, with the state requesting extensions of time to turn over the data on more than one occassion.
Thursday, June 5, 2014
In a decsion of interest to schools with professional graduate degree programs, a federal court has blocked Case Western Reserve University (CWRU) from withholding a medical student's degree because he failed to report a DWI arrest while he was in college. The Cleveland Plain Dealer reports that the student, Amir Al-Dabagh, was about to graduate and begin a dermatology residency on June 17 when CWRU told him that he would be dismissed from the medical school "for continued and serious breaches in the code of conduct and standards of professionalism." Al-Dabagh was convicted of a misdemeanor DWI (from the college arrest) this April, and while he did report the conviction to the hospital where he was working, CWRU learned of it before he had an opportunity to report it to the school. U.S. District Court Judge James Gwin wrote that CWRU "acted arbitrarily and capriciously in finding Al-Dabagh did not satisfy the core competency of "professionalism.'" Judge Gwin stated that CWRU recommended Al-Dabagh for a residency and told him that he would graduate with distinction for his research. While the school listed other misbehaviors as part of its consideration, several of the incidents were off-campus. While there was other misconduct related to the student's fitness to be a doctor, such as complaints from a patient's family, giving patient case summaries where he might not have personally examined the patient, and covering for late attendances, CWRU relied on the DWI prosecution as its basis to expel Al-Dabagh. Judge Gwin found that CWRU's finding that Al-Dabagh lacked professionalism to be a doctor was contradicted by the record, and that Al-Dabagh satisfied "all of the University requirements to graduate and receive his diploma." Read more at The Plain Dealer here.
Thursday, May 29, 2014
A state judge struck down struck down Alabama's tax credits law yesterday on state constitutional grounds. The Alabama Accountability Act gives tax credits for parents who move their children from failing public schools to private schools. Montgomery Judge Gene Reese ruled the Accountability Act violated the Alabama Constitution because it provided public funds for private education, put more than one subject in a bill, changed from its purpose of flexibility, which had virtually no cost, to potentially costing $40 million in annual tax credits. Alabama Attorney General Luther Strange says that his office will appeal the ruling. The Alabama Accountability Act has been troubled from its inception and hit more speed bumps in its implementation, as we have covered here and here. The tax credit law's reality as we posted here, is that tax credits are not feasible for students in "failing" schools to use to transfer when many students live in areas where there is no alternative non-failing public school or private school. According to the Alabama Revenue Department, taxpayers donated $25 million in 2013 to pay for scholarships through Scholarship Granting Organizations, or SGOs, for children leaving failing schools under the law. The Alabama Department of Education estimates that 52 students statewide transfered using tax credits to go to private schools. There were 78 schools on the Alabama failing schools list. Read the ruling here.
Wednesday, May 7, 2014
Teachers lost their challenge to Florida's teacher evaluation law after the state was granted summary judgment in a ruling yesterday by U.S. District Judge Mark E. Walker. The teachers' suit challenged the state's 2011 Student Success Act that requires school districts to evaluate teachers based in part on “student learning growth” -- defined by increases in standardized test scores. Florida is one of several states that have passed "value added" teacher evaluation laws linking teacher merit pay and retention to students' standardarized test performances. (We recently posted about a teachers' union lawsuit in Tennessee challenging a similar law.) In Cook v. Stewart, the plaintiffs challenged Florida's evaluation system as irrational, arbitrary, and violative of substantive due process and equal protection. The plaintiffs argued that for teachers whose subjects are not tested on standardized tests or who are instructional personnel who do not teach, their evaluations are based either on student scores in other subjects or on a school-wide composite score that is the same for every teacher in the school. The State of Florida countered those claims by arguing that the districts’ policies were not irrational because “professional teachers could positively impact all students at their schools” and “student learning in one subject [could] benefit students in other subjects.” The district court found that the State's evaluation policies had a rational basis in that they attempted to further a legitimate interest in increasing student learning. Florida's law also passed equal protection review because no discrimination could be inferred by classifying teachers under the state's scheme; nor, said the district court, "can it be said that the classification is without a “basis in practical experience” or that it is “wholly unrelated” to increasing student learning growth." Nevertheless, the district court had harsh words for the efficiacy and fairness of the evaluation system, stating that "[n]eedless to say, this Court would be hard-pressed to find anyone who would find this evaluation system fair to non-FCAT teachers, let alone be willing to submit to a similar evaluation system." Read Cook v. Stewart, No. 1:13-cv-72 (N.D. Fla. May 6, 2014) online here.
Wednesday, April 23, 2014
A great deal will be written about the future of racial diversity in higher education following yesterday's decision in Schuette v. Coalition to Defend Affirmative Action, but here is a recap from Mark Walsh at SCOTUSBlog on the opinion's announcement by Justice Kennedy, writing for the court in a plurality opinion joined by Chief Justice Roberts and Justice Alito:
“[This opinion] is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education,” [Justice Kennedy] says. “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.”
“Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice.”
“Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that race-based preferences should be adopted,” he says. “The constitutional validity of some of those choices regarding racial preferences is not at issue here. The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow.”
Justices Bryer, Scalia, and Thomas filed opinions concurring in the judment.
Two funding inequity lawsuits were recently filed challenging New Mexico's education system. The first alleges that ELL and economically disadvantaged students are receiving a substandard education under the state's funding scheme and A-F grading system. In State v. Martinez, filed by the Mexican American Legal Defense and Educational Fund, the plaintiffs assert that New Mexico's underfunding of public education and its school rating system violates the state's education clause, due process, and equal protection. The state's education funding formula, the plaintiffs allege, fails to allocate sufficient supplemental funds for areas were the needs are greatest for at-risk and special needs students. In spending per pupil, New Mexico reportedly spends $9,070 per student, ranking 37th in the nation. The suit also targets "unfair and non-transparent school accountability grading and teacher evaluation systems that drive quality teachers and leaders from schools disproportionately enrolling English Learner ("EL") and low-income students." The funding inequity, combined with the teacher evaluation system, results in experienced teachers avoiding lower-ranked schools. The MALDEF suit is here.
The New Mexico Center on Law and Poverty (NMCLP) is also challenging the state's funding scheme for families of New Mexican students. The CLP suit notes that New Mexico's student standardized test performance has fallen to the bottom of the nation. On standardized tests given in the last two years, New Mexico's students ranked at bottom of the country in 4th grade reading and are just ahead of the bottom -- Alabama, Mississippi, and Louisiana -- in math. Contributing to the problem is the state's high child poverty rate, which is the second highest in the nation. Given those factors, the CLP suit argues, New Mexico's education system is severely underfunded. The CLP suit is here.
Thursday, April 10, 2014
Second Circuit Rules that IDEA's Least Restrictive Environment Requirement Applies to Extended-Year Placements
The Second Circuit held last week that the Individuals with Disabilities Education Act's least restrictive enviroment requirement applies to extended-year placements (ESY) just as it does to school-year placements. New York's Cornwall Central School District placed a kindergarten student, T.M., in a 12-month educational program that included ESY services over the summer. The Cornwall school district determined that T.M., a student with autisim, needed an ESY placement to prevent substantial regression. The district did so under the IDEA's requirement that school districts “ensure that extended school year services are available as necessary" to provide a free and public education for students with disabilities. However, T.M.'s parents and the school district were unable to agree on T.M.'s IEP, as the parents objected to the school's offer to place T.M. in a summer program in a self-contained special education classroom rather than provide support services in a general education classroom integrated with non-disabled students. T.M.'s parents sued, alleging that Cornwall failed to offer T.M. the least restrictive ESY placement under the IDEA. Cornwall responded that the LRE requirement applies only where the state already operates a mainstream classroom in which the student can be placed. Because Cornall does not offer an ESY mainstream program, the district argued, the LRE requirement does not apply to T.M.'s ESY placement. The district court granted summary judgment in favor of the district, ruling that Cornwall had met its obligations under the IDEA. Overturning the district court, the Second Circuit held that "[i]f a disabled child needs ESY services in order to prevent substantial regression, that child's ESY placement is an integral part of his or her twelve-month educational program." The circuit court noted that the IDEA requires education to be provided in "the least restrictive educational setting consistent with that student's needs, not the least restrictive setting that the school district chooses to make available." The circuit court then turned to whether Cornwall had to pay the full cost of T.M.'s pendency services through private providers even though Cornwall had offered to provide the same services itself at a lower cost. During the pendency of the suit, T.M.'s parents enrolled him in a developmental kindergarten program at another school and arranged for additional special education services at their own expense. The Second Circuit held that "[a]lthough Cornwall was wrong to deny T.M. pendency services in the first place, it nevertheless is not required to pay for T.M. to remain with the same pendency services providers throughout this entire litigation." Read T.M. v. Cornwall Central School District, No. Nos. 12–4301, 12–4484 (2d Cir. Apr. 2, 2014) here.
Tuesday, April 8, 2014
In 2011, the Fifth Circuit held that an elementary school principal unconstitutionally discriminated on the basis of viewpoint when she did not allow a student to distribute candy canes with religious messages during an in-class party. Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011) (en banc). Last week, the Circuit revisted the Morgan case, this time to consider the claim of the student's father, who attended the party with his son. Doug Morgan, the father, alleged in a suit that he also "experienced viewpoint discrimination when [the principal] told him not to distribute the religious material to other consenting adults in the classroom." The federal district court below dismissed the father's claim, finding that the principal had qualified immunity because her conduct was not “clearly established” as unconstitutional when she stopped Morgan from distributing religious material during the school party. The Fifth Circuit upheld the district court's ruling, noting that no case clearly established a third party's right to distribute religious material in a school over the adminstration's objections. Fifth Circuit Judge Fortunato Benavides separately writes to elaborate on the complexities of viewpoint discrimination and how if courts struggle with its application, the law is unlikely to be clearly established for a school principal. For more on religious expression in schools, see Kristi L. Bowman, Public School Students' Religious Speech and Viewpoint Discrimination, 110 W. Va. L. Rev. 187 (2007). Read the decision in Morgan v. Swanson, No. 13-40433 (5th Cir. Apr. 2, 2014) here.
Friday, April 4, 2014
The Second Circuit Court of Appeals has reversed a district court’s ruling that the New York City’s Board of Education policy prohibiting religious worship services on school grounds violated the Free Exercise and Establishment Clauses of the First Amendment. In Bronx Household of Faith v. Bd. of Educ. of City of New York, the NYC Board of Education and the local school district appealed a district court's grant of summary judgment permanently enjoining them from enforcing a regulation (Regulation I.Q.) against a church. Regulation I.Q. permits outside groups to use school premises after hours for social and civic activities that are open to the general public, but prohibits the use of school property for religious worship services. In 1994, a local church, the Bronx Household of Faith, applied to use space in a local middle school for church services, but the NYC Board of Education denied the application under Regulation I.Q. Bronx Household sued, arguing that the enforcement of the regulation constituted viewpoint discrimination and violated the First Amendment. In this latest round of litigation —the case has been before the Second Circuit six times—the court of appeals held that Supreme Court precedent in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), does not compel strict scrutiny analysis of Regulation I.Q. Lukumi does not apply to Regulation I.Q., the Second Circuit reasoned, because “a reasonable governmental decision not to subsidize a category of activity is not a suspect discrimination among religions merely because some religions do and others do not engage in that activity. . . We believe the District Court has misunderstood Lukumi in construing it to mean that a rule declining to subsidize religious worship services so as not to risk violating the Establishment Clause is automatically constitutionally suspect and subject to strict scrutiny.” The court of appeals also found the process of determining if a proposed use of school facilities is a religious worship service would not cause an excessive entanglement with religion under the Establishment Clause. Because the Board relies on applicants’ stated characterizations to decide if proposed activities are religious worship services, the Board does not define or make its own determination about what constitutes religious worship. Moreover, the Circuit stated, the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S.Ct. 694 (2012), would not prohibit the Board from making such a decision because 1) the Board would not impose any control over a church's religious activity by determining if they are worship services, and 2) the Supreme Court’s own determination in Hosana-Tabor that the plaintiff was a minister (and thus that the ministerial exception applied to a church's employment decision) belies a conclusion that a governmental entity cannot make such a determination. Read the Second Circuit’s decision in Bronx Household of Faith v. Bd. of Educ. of City of New York, 12-2730-CV, 2014 WL 1316301 (2d Cir. Apr. 3, 2014) here.