Monday, September 22, 2014
Shortly after the shooting of Michael Brown in Ferguson, Edwardsville, Illinois Superintendent Ed Hightower told his teachers to not bring up or discuss the situation in Ferguson and, if students brought it up, to change the subject. His rationale, “this situation in Ferguson-Florissant has become a situation whereby there are so many facts that are unknown.” The initial impetus was apparently complaints by parents about teachers sharing their opinions on Ferguson. That motivation would have obviously raised First Amendment red flags. In a subsequent statement, he tried to fit his directive closer to the law, stating:
We felt it was important to take the time to calm a potential situation at the high school and to prepare administrators and teachers to approach this critical issue in an objective, fact-based manner. Everyone has an opinion — the sharing of which can be polarizing. Far too many facts remain unknown, and without these facts, none of us is in the best position to moderate between opposing views.
Friday, September 19, 2014
Those who seek to include more religion in school often perceive the ACLU as waging war on religion. A recent story out of Louisiana demonstrates that perception is wrong. The ACLU distinguishes between official school acts that endorse religion or subtly coerce non-believers into religious activity and those school acts that interfere with students's free exercise of religion.
At the beginning of the school year, South Plaquemines High School in Louisiana suspended a Rastafarian boy school and forbade him from returning until he cut his dreadlocks. They cited him with violating the school's dress code, which prohibits hair below the collar. The next week he returned to school with his hair pinned up, but told him he was still in violation of the dress code.
Rastafarians' religious beliefs, although some charge it is just a way of life, forbid them from cutting their hair, and the ACLU of Lousisiana has stepped in to support the boy for this reason. “The wearing of dreadlocks for (the student) is akin to the wearing of a religious icon by another student,” the ACLU said in a letter. “We would object if the school were to tell a Christian student they could not wear a cross or if it were to permit the wearing of religious icons of one faith and prohibited those of another faith. In discriminating against (the student’s) religious beliefs, the school is expressing a preference for certain religions, which is unacceptable.” The ACLU charges that the district's actions violate the First Amendment and Louisiana’s Preservation of Religious Freedom Act.
Tuesday, September 9, 2014
Today, the Judiciary Committee in the U.S. House of Representatives is holding a hearing on the need for a constitutional amendment to protect parental rights. Of concern to proponents are state incursions on the ability of parents to direct the education and medical decisions of their children. Such an amendment will go nowhere fast, but the testimony and discussion should be of interest to scholars and advocates. The committee will hear testimony from Michael Farris, Chairman of the Home School Legal Defense Association; Professor Catherine Ross, George Washington University Law School; and Wendy Wright, Vice President of the Center for Family and Human Rights Institute. Details on the hearing and links to their written testimony can be found here.
Tuesday, September 2, 2014
New Hampshire Supreme Court Reinstates Tuition Tax Credit Program But Avoids Law’s Constitutionality
A unanimous New Hampshire Supreme Court rejected a challenge last week to the state’s tuition tax credit law but side-stepped the issue of its constitutionality. The state supreme court dismissed Duncan v. State of New Hampshire on standing grounds, holding that a recent amendment to the law allowing taxpayer standing was insufficient to confer standing under the state constitution. While New Hampshire’s constitution does not have a corresponding provision to the federal constitution’s Article III standing clause, the court interpreted a provision authorizing the supreme court to rule upon “upon important questions of law and upon solemn occasions” to prohibit issuing advisory opinions to private persons. The N.H. Supreme Court’s ruling reinstates a law allowing businesses to receive an 85 percent tax credit when they donate to private scholarship organizations for students who attend private school, homeschool or an out-of-district public school. A lower court ruled last year that the tax credit program unconstitutionally sent public tax dollars to private religious schools. Right now, the tax credit program is so small that it may be difficult to demonstrate harm in a future legal challenge, Bill Duncan, state Board of Education member and lead plaintiff, told NPR. The state’s first scholarship program raised $250,000 dollars for scholarships in 2013, but $50,000 this year, albeit in the shadow of the lower-court ruling. The state program would allow up to to $5.1 million in tax credits to be claimed this year. Read Duncan v. State of New Hampshire here.
Thursday, August 14, 2014
In October 2012, a controversy arose at Kountze High School in Kountze, Texas, over the constitutionality of permitting, and then banning, the high school's cheerleaders from displaying religious messages on the banners that the football team runs through at games. Initially, the Freedom From Religion Foundation challenged the banners as school sponsored speech. The school district agreed and prohibited the banners. The cheerleaders then sued, claiming that the school was infringing on their constitutional rights by limiting their speech. A state trial court agreed. After an intermediate court declared the case moot, it is now on petition to the state supreme court.
The case is particularly fascinating for three reasons. First, it implicates the fine line between religious endorsement and religious accommodation that often consumes so much time in education law classes. Second, it raises unique and difficult circumstances for assessing school sponsored speech. Thinking of my own experiences two decades ago, it seemed cheerleaders were on their own in artistically expressing themselves through banners. I recall them sitting on the gym room floor acting freely. It is hard to imagine that a school could permissibly engage in content based or religious based limitation of that expression.
Tuesday, July 29, 2014
The Supreme Court in Engel v. Vitale in 1962 held that prayer led by or encouraged by school officials in public schools is unconstitutional. Nonetheless, the practice continues in a number of public schools today. Recently, for example, a parent complained that a teacher had led prayer at a school banquet in Vigo County, Wisconsin. It took a year and lawsuit by a local foundation to get the district to agree to eliminate teacher led prayer.
Many school districts have appeared eager, for some time, to reintroduce official prayer in some aspect of their schools. The Supreme Court’s recent decision in Town of Greece v. Galloway may have further galvanized them. In Town of Greece, the Court ruled in favor of allowing sectarian prayers at public town meetings. Now, school districts like Pickens County, South Carolina are taking the Supreme Court’s decision a step further, reading it as a green-light to reinstate sectarian prayer in school board meetings as well.
Monday, July 21, 2014
An Arizona charter school, Heritage Academy, is purportedly using two of Cleon Skousen’s books, “The 5,000 Year Leap” and “The Making of America,” in its high school history class. The books depict American slavery in a racist and sympathetic light. Skousen, for instance, includes an essay arguing that “if [African-American children] ran naked it was generally from choice, and when the white boys had to put on shoes and go away to school they were likely to envy the freedom of their colored playmates.” Professor Garret Epps, University of Baltimore School of Law, explains that “parts of [Skousen's] major textbook … present a systematically racist view of the Civil War” with a “long description of slavery in the book” arguing that slavery was “beneficial to African-Americans and that Southern racism was caused by the ‘intrusion’ of Northern abolitionists and advocates of equality for the freed slaves.” The school's founder and principal defends the use of the books, stating that "Our purpose is not to convert students to different religious views. It is to show them that religion influenced what the Founders did.”
Rushing to judgment in book cases is all too easy, and that is how school boards and state departments of education find themselves in lawsuits. All books can have value in the classroom. What matters is not the views the books espouse, but how those views are presented to students. As a litany of establishment clause cases has shown us, the Ten Commandments and the Bible can be used in school, if used in the proper context. The problem is that the proper context is most often lacking.
Thursday, July 17, 2014
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.
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.
Monday, June 30, 2014
Last year, three families filed suit against the New York City School system for its exclusion of their children because they had not received their vaccinations. They alleged that the forced vaccination program violates their religious beliefs.
In their First Amendment cause of action, Plaintiffs claim their rights to free exercise of religion were violated when their children were excluded from school due to their religious beliefs running counter to vaccination practice. Plaintiffs argue that their children were “arbitrarily, capriciously, unreasonably and unconstitutionally denied” the right to free exercise of religion based on the state vaccination practice, in general, and, in particular, because the religious exemption standards “force[ ] parents to detail their religious beliefs and submit to a ‘test,’ and the determinations of whether or not to grant the religious exemptions falls[ sic ] to the subjective judgment of one school official who is unqualified to make such a determination.”
The district court, in dismissed the case, wrote "not only has the Supreme Court strongly suggested that religious objectors are not constitutionally exempt from vaccinations, courts in this Eastern District have resolutely found there is no such constitutional exemption." Plaintiffs "opine that [the Supreme Court decision] is bad law and ask this Court to overturn the Supreme Court decision, [but] “this the Court cannot do.”" The court dismissed their equal protection and substantive due process claims just as quickly. Plaintiffs plan to appeal the case. The school system welcomed the reaffirmation of its policy, as public health officials indicate that "some diseases are experiencing a resurgence in areas with low vaccination rates."
More on the backstory here.
Thursday, June 19, 2014
The now well-publicized federal lawsuit filed this week by a former high school student after he was suspended for a two-word post highlights the continuing difficulties that school officials have regulating off-campus internet speech. The student, Reid Sagehom, was suspended from Rogers High School in Minnesota for his response to an anonymous question on an unofficial student website asking if he had made out with a female school teacher. Sagehom responded, sarcastically, he says, “Actually yeah.” The school then recommended Sagehom be suspended, ultimately for ten weeks, because he “damaged a teacher's reputation.” Sagehom filed a complaint on Tuesday alleging that his speech was protected and that the subsequent events to the post, including being referred for prosecution and publicly upbraided by a police chief, violated his First and Fourteenth Amendment rights. Sagehom's complaint may likely never reach the decision stage, but raises issues that continue to bedevil the federal courts -- when does students' off-campus internet speech actually cause a substantial disruption to the educational environment under Tinker? Read the complaint in Sagehom v. Independent School District No. 728, 2014 WL 2724866 (D.Minn. June 17, 2014) here.
Monday, June 16, 2014
The Elmbrook School district in suburban Milwaukee conducted high school graduation ceremonies in the auditorium of a church. The district's decision was based on its school's inadequate space and air conditioning. The graduation itself was completely secular, but some the church's religious symbols remained in the auditorium during graduation. The Court of Appeals held that holding the graduation there conveys the message of government endorsement of religion and, thus, struck down the practice. The Supreme Court denied certiorari in the case today, although the denial drew dissents from Justices Scalia and Thomas. You may recall that earlier this term the Court upheld the practice of prayer at the beginning public meetings as a non-coercive historical practice.
Monday, June 9, 2014
Following a number of school religious expression bills introduced in state legislatures in the last year, the North Carolina House passed a bill last week that allows public school students to pray, express religious viewpoints, pass out religious materials, and assemble "as is given to other noncurricular groups without discrimination based on the religious content of the students' expression." The N.C. House approved S.B. 370, which also provides that school employees who are viewing student religious expression "shall not be disrespectful of the student exercise of such rights and may adopt a respectful posture." The bill will have to return to the state senate for final approval, where it is expected to pass. The ACLU of North Carolina released a statement objecting to the bill's language which it says could leave school officials unclear about the rules, particularly as adopting "a respectful posture" could communicate approval of one religious view above others. In application, the legislation is certain to highlight the tension between the Establishment and the Free Speech and Exercise Clauses that currently require public school officials to show neutrality in their treatment of religion and not inhibit student expression of privately-held views as long as that expression does not infringe upon the rights of others. For an overview of the constitutional issues, read the ED's Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools here.
Wednesday, May 14, 2014
Massachusetts' Supreme Judicial Court held in Doe v. Acton-Boxborough Regional School District that the pledge of allegiance does not violate the state constitution. Plaintiffs' claim was a denial of equal protection rather than religious freedom or establishment of religion. The court reasoned that (1) "the pledge is a fundamentally patriotic exercise, not a religious one;" (2) "no student is required to recite the pledge;" and (3) "[w]here the plaintiffs do not claim that a school program or activity violates anyone's First Amendment religious rights (or cognate rights under the Massachusetts Constitution), they cannot rely instead on the equal rights amendment, and claim that the school's even-handed implementation of the program or activity, and the plaintiffs' exposure to it, unlawfully discriminates against them on the basis of religion."
Plaintiffs' had argued that the Pledge "stigmatize[d]" and "marginalized" some students, making them "feel excluded." Per its third point above, the court emphasized that their was no evidence "that their children have been punished, bullied, criticized, ostracized, or otherwise mistreated by anyone as a result of their decision to decline to recite some (or all) of the pledge." Rather, plaintiffs' claim was
more esoteric. They contend that the mere recitation of the pledge in the schools is itself a public repudiation of their religious values, and, in essence, a public announcement that they do not belong. It is this alleged repudiation that they say causes them to feel marginalized, sending a message to them and to others that, because they do not share all of the values that are being recited, they are "unpatriotic" "outsiders." We hold that this very limited type of consequence alleged by the plaintiffs -- feeling stigmatized and excluded -- is not cognizable under art. 106.(23)
Three weeks ago, I posted on a similar pending suit under New Jersey law. This Massachusetts decision would suggest the answer to my earlier question of whether state courts might treat Pledge challenges differently than federal courts is no.
Wednesday, April 23, 2014
Matawan-Aberdeen Regional School District in New Jersey is being sued over the Pledge of Allegiance. Anonymous parents and the American Humanist Association are bringing the suit. They argue that the the phrase "under God" in the Pledge of Allegiance discriminates against atheists. The pledge
publicly disparages plaintiffs' religious beliefs, calls plaintiffs' patriotism into question, portrays plaintiffs as outsiders and second-class citizens, and forces (the child) to choose between nonparticipation in a patriotic exercise or participation in a patriotic exercise that is invidious to him and his religious class.
. . .
While plaintiffs recognize that (the child) has the right to refuse participation in the flag-salute exercise and pledge recitation, the child does not wish to be excluded from it, and in fact wants to be able to participate in an exercise that does not portray other religious groups as first-class citizens and his own as second-class.
To bolster their claim that the Pledge reinforces prejudice against atheists and Humanists, they cite to studies showing atheists are the most disliked and distrusted group in the country.
Unlike prior claims brought and rejected under the First Amendment of the United States Constitution, this claim proceeds under the New Jersey Constitution, which may make a difference.
In Newdow v. Rio Linda Union School District, 597 F.3d 1007 (9th Cir. 2010), the Ninth Circuit held that the Pledge in school did not violate the establishment clause. It reasoned that the words "under God" cannot be read alone, but must be read in the context of the entire pledge. Based on this context, the court held that the pledge and this phrase were patriotic not religious. It also pointed out that
The Supreme Court has agreed the Pledge is a “patriotic exercise designed to foster national unity and pride.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 6, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). Even the dissent agrees on this determinative point. Dissent at 4040 (“[T]he recitation of the Pledge both as originally written and as amended is a patriotic exercise....”). The question about which we disagree is whether this patriotic activity is turned into a religious activity because it includes words with religious meaning.
The 2010 decision by the 9th Circuit, however, was a shift in course, as some earlier decisions in the circuit had found the pledge to violate the Establishment Clause. The past history, as described by the court in Newdow, follows the jump.
Monday, April 7, 2014
Elizabeth M. Jaffe's roundup of the caselaw and literature on cyberbullying, From the School Yard to Cyberspace: A Review of Bullying Liability, is now available on westlaw at 40 Rutgers Computer & Tech. L.J. 17 (2014). Her introduction summarizes the article as follows:
There has been a lot of change--both good and bad--over the course of scholarship focusing on bullying and cyberbullying. With the growing use of technology, bullies have moved from in-person encounters in the classroom or the schoolyard to chatrooms, walls, pages, and the like in the cyberworld. Despite the increased awareness and media coverage, bullying remains a growing problem in today's society. To that end, there are current voids in the law that need to be revised in order to protect the countless and growing number of victims. Simply put, the law has not gone far enough.
Through my research and involvement with this area of scholarship, there are few things that are clear. The First Amendment protects speech and ideas in the traditional sense but fails to adequately adapt to the changing online landscape. Traditional tort principles of liability have not played out yet to holding a bully liable for his actions, and the notion of holding the webhost liable has not taken hold to the extent that may be necessary. As such, we are left with the dilemma of where the legal landscape needs to proceed. Specifically, some type of duty is needed for bullying liability. But to whom should this duty apply? Accordingly, the purpose of this Article is to synthesize my scholarship to date focusing on the issue of bullying and cyberbullying in the context of primary and secondary education and propose resolutions to the cyberbullying epidemic by reviewing the appropriate instances and individuals to whom a duty should be imposed.
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.
Tuesday, March 25, 2014
Yesterday, I had the opportunity to debate Richard Duncan in a Federalist Society forum on school choice. In my naivete, I had assumed the point of the debate was academic. Halfway through it, I felt compelled to point out to the audience that his arguments about religious freedom had moved well beyond constitutional doctrine or sound educational policy. Rather, he was forwarding a political argument masquerading as a constitutional claim. I revel in a good political debate as much as anyone else and said I welcomed a political debate, in which everyone would be entitled to their opinion, but the same is not necessarily true in regard to the constitutional and educational policy claims because there are certain baseline facts and doctrines beyond dispute there.
Nevertheless, I left the debate thinking our conversation was limited to a causal Monday afternoon luncheon. Today, my naivete was exemplified again. Stephanie Simon, of Politico, reports that taxpayers are increasingly bankrolling the tuition of students attending private religious schools. The current total investment in just 14 states is nearly $1 billion a year. Since 2010, those numbers are up 30 percent. Twenty-six additional states are considering measures that would add to this growth. I knew we had seen an uptick in recent years, but not this much. This rapid growth is being fueled by political lobbies. One pro-voucher group, the American Federation for Children, has spent $18 million on these campaigns since 2007.
Of course, this movement is not new. James Foreman's article, The Rise and Fall of School Vouchers: A Story of Religion, Race and Politics, 54 UCLA L. REV. 547 (2007), details how religious advocates for vouchers drew on inner city communities' interest in escaping failing schools to secularize their voucher claims, and how the Supreme Court then sanctioned it. But as charters became more readily available, inner city communities' interest in vouchers fizzled somewhat and, with it, the necessary political support to pass legislation. What is interesting in this new round of advocacy is that since the Court has sanctioned vouchers that place students in religious schools (because the overall program is non-discriminatory and the purported purpose secular), voucher advocates appear more willing to assert religious freedom, if not entitlement, as the basis for expanding voucher programs. They claim the state is discriminating against them if it does not provide them with vouchers. Current doctrine, of course, does not support such a claim. But pushing back against this claim requires that one sees it for what it is: a political claim. Moreover, it may not even be the politics of religion pushing it, but the politics of privatization, which use religious and minority interests as window dressing for a larger agenda.
Friday, March 14, 2014
The following is a cross-post, curtesy of Scott Bauries at edjurist.com. Thanks Scott.
Imagine that you are an educational leader hired to head up an important community college program for at-risk youth. In your first days on the job, you do what any good leader does and audit the books. Through this review, you discover that you have an employee who is drawing a large salary from the program, but is not doing much, if any, work. You do some further digging, and you realize that this "employee" with the "no-show" job is also a sitting state legislator. You care about your fiduciary duty over the public money you've been entrusted, so you confront the no-show employee and request that she begin showing up and working. She not only refuses, but also threatens your livelihood. You are not a coward, so you fire her. Not only that, but when subpoenaed, you testify truthfully against her in her criminal trial once the feds discover her fraud. Soon after, you are fired.
You file suit against your former employer to challenge your termination as retaliation for your speech as a citizen on a matter of public concern. But the District Court, and later the Circuit Court of Appeals, reject your challenge, citing the Suprme Court's recent decision in Garcetti v. Ceballos. In Garcetti, the Court held that, "when public employees speak pursuant to their official duties, they do not speak as citizens, and the First Amendment does not shield their communications from employer discipline." Essentially, speech that a public employee is hired to make is not that employee's own speech, but his work product, and may therefore be the basis of employer discipline. The Circuit Court cites Garcetti and reasons that, because you testified only about matters you learned about at work, your testimonial speech "owe[d] its existence" to your employment, and was therefore made "pursuant to [your] official duties." Notwithstanding the Garcetti rule, the Circuit Court proclaims that it is immaterial that your job does not require you to testify in judicial proceedings, as long as your testimony is about your job.
Should this judicial sleight-of-hand resulting in an unbelievably expansive reading of the Garcetti exemption be allowed to stand? In Lane v. Franks, the Court will consider the question on alleged facts similar to those in the vignette above. Along with Professors Paul Secunda and Sheldon Nahmod, and on behalf of more than 60 other law professors, I have written an amicus brief (free download) arguing for the reversal of the 11th Circuit's flawed reading of Garcetti. The case will be argued on April 28th, and it could have major implications for public employees--including educational employees--nationwide.