Tuesday, August 25, 2015

Sex Education Is In for a Controversial Year

In 2012, Arizona law enacted legislation providing that “no school district or charter school in this state may endorse or provide financial or instructional program support to any program that does not present childbirth and adoption as preferred options to elective abortion.”  This fall a sticker on the front of a biology textbook that promotes that agenda is raising eyebrows.  Gilbert Unified School District placed this message on it biology textbooks:

The Gilbert Public School District supports the state of Arizona’s strong interest in promoting childbirth and adoption over elective abortion. The District is also in support of promoting abstinence as the most effective way to eliminate the potential for unwanted pregnancy and sexually transmitted diseases. If you have questions concerning sexual intercourse, contraceptives, pregnancy, adoption or abortion, we encourage you to speak with your parents.

The same group that pushed for this sticker was part of the push for the anti-gay legislation that made national news in Indiana, which brings us to anti-gay sex education in South Carolina.  

In the late 80s, South Carolina passed legislation providing that sex education "may not include a discussion of alternate sexual lifestyles including, but not limited to, homosexual relationships except in the context of instruction concerning sexually transmitted diseases.”  This provision is just one part of a larger section of the code dealing with sex education.  The code includes a provision that requires school districts to send a letter to parents each year outlining what will be taught in the class.  This year, the letter focused directly on homosexuality, parroting the statute.  The letter informed parents:

The program of instruction for this unit may not include discussion of alternate sexual lifestyles from heterosexual relationships including, but not limited to, homosexual relationships except in the context of instruction concerning sexually transmitted infections.

The timing of this shift in focus in the letter left some scratching their head.  A major purpose of the legislation had been to promote sex within marriage, not outside of it.  Of course, homosexual couples now have the right to be married in South Carolina, which begs the question of whether the state can intentionally exclude conversations of their sexual relationships.

The answer would seem to be no, but not necessarily because of the recent gay marriage case.  The First Amendment should prohibit this type of specific exclusionary language, regardless of the same sex marriage decisions, because schools are not allowed to be the "idea police."  Schools can certainly choose to promote certain messages, but what they cannot do is intentionally shut down ideas for political or other discriminator reasons, nor can they enact overly broad and vague restrictions on speech that quells protected speech.  South Carolina's provision would appear to violate both principles.  Just this year, the Ninth Circuit followed this exact reasoning in striking down Arizona's ban on ethnic studies in Arce v. Huppenthal

 

August 25, 2015 in First Amendment, Gender | Permalink | Comments (0)

Monday, August 24, 2015

Is California's Denial of Religious Exemptions from Vaccines Constitutional?

Earlier this summer, California eliminated religious exemptions from school vaccinations, making it only the third state to do so.  In my previous post on the legislation, I noted that on its face it might raise freedom of religion concerns, but one close examination it probably need only pass rational basis review.  Dorit Rubinstein Reiss has posted a new article on ssrn, Vaccines, School Mandates, and California's Right to Education, that offers a much deeper analysis.  The abstract offers this summary:

California recently enacted Senate Bill 277, which abolishes the personal-beliefs exemption to school immunization requirements. One possible challenge to the law’s constitutionality is that it impermissibly limits the right to education. This Essay rebuts such positions. California’s jurisprudence regarding access to education applies to protected categories; it does not limit the ability of the state to impose health and safety regulations such as immunization requirements. Moreover, the requirement would withstand even strict scrutiny, if applied, because disease prevention in the school context is a compelling interest and there is no alternative that is as effective. Finally, the law actually protects the right of access to education for those whose parents do not have the luxury of choice, such as immune-compromised children, while still reasonably preserving parental choice overall.

 

August 24, 2015 in First Amendment | Permalink | Comments (0)

Wednesday, August 19, 2015

The Danger of Schools Monitoring Students' Social Media

A growing number of reports reveal that schools are starting to more systematically monitor their students' social media.  The most recent report is from Orange County in Florida, where the school district has purchased software that allows it to do keyword searches across multiple social media platforms for all students.  Some have raise privacy concerns about this trend.  Orange County, at least, does not appear to be crossing any privacy lines because it is only monitoring public posts. They are not attempting to gather students' passwords or anything of the like.  The software simply allows the district to achieve efficiently what any other person with an internet connection could, if the person just had the time and energy to sift through everything.

The more important issues are what exactly districts do with this information.  First, sometimes too much information is a bad thing.  Consider the student who simply complains about his teacher online--something students have been doing in hallways, in cafeterias, on telephones, and in handwritten notes since forever.  That information has had a very short shelf-life and rarely made it to the subjects of the complaints.  It would be a bad thing if now that information got passed along. The likelihood that it could interfere with relationships is significant, while the harm that sharing that information would ward off is almost non-existent.  

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August 19, 2015 in First Amendment | Permalink | Comments (1)

Friday, August 7, 2015

Does Texas Increasing Mandatory School Attendance to 19 Years of Age Raise Liberty Concerns?

LaJuana recently posted on the Texas truancy reform legislation when it was enacted.  Josh Gupta-Kagan followed up on the legislation and tipped me to an interesting detail regarding mandatory school attendance.  The legislation raised the drop out age from 18 to 19.  This move is also coincides with recent changes to compulsory attendance in Kentucky.  The move to reduce dropout nationwide makes obvious sense, but it is not as simple as one might think.

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

Tuesday, July 28, 2015

Settlement Reached For Student Expelled After Protesting College's Parking Deck Plans

A settlement has been reached in Barnes v. Zaccari, the long-running case in which a Valdosta State University (Ga.) student was expelled in 2007 after he protested the VSU president's plans to build a new parking deck. After a letter-writing campaign opposing the environmental impact of VSU's parking deck plans, student Thomas Barnes posted a collage on his Facebook page titled “S.A.V.E.—Zaccari Memorial Parking Garage” that included a portrait of then-VSU President Ronald Zaccari. (A copy of the collage can be found here.) Zaccari interpreted the word "memorial" to apply to deceased persons, therefore signaling that Barnes contemplated harm to him. He ordered that Barnes be "administratively withdrawn" from VSU because Barnes presented a “clear and present danger” to the campus. Barnes sued Zaccari in federal court, claiming violations of his  due process and free speech rights. The district court denied Zaccari's summary judgment motion based on qualified immunity. A federal district court denied Barnes' First Amendment retaliation claim, finding that because it was pled as a conspiracy claim and VSU's administrators opposed Zaccari's actions, there was no agreement to form a conspiracy. In 2013, a federal jury found the collage was innocuous expression, finding Zaccari personally liable for $50,000 for violating Barnes's rights. In January 2015, the Eleventh Circuit held that the district court erred in granting summary judgment in Zaccari's favor on the First Amendment retaliation claim. Barnes v. Zaccari, 592 Fed.Appx. 859 (11th Cir. 2015). VSU apparently has decided that it is done fighting the case. Read more about the settlement at the Foundation for Individual Rights in Education here.

July 28, 2015 in Cases, First Amendment, News | Permalink | Comments (0)

Monday, July 20, 2015

Court Holds Arizona's Ban on Ethnic Studies Violates First Amendment and Remands for Further Findings on Discrimination

The Ninth Circuit has issued its decision in Arce v. Huppenthal.  The case arises out of the 2010 ban on Mexican American Studies programs in Arizona.  The legislature passed A.R.S. § 15-112(A), which prohibits school districts and charter schools from having educational programs that: (1) “Promote the overthrow of the United States government,” (2) “Promote resentment toward a race or class of people,” (3) “Are designed primarily for pupils of a particular ethnic group,” or (4) “Advocate ethnic solidarity instead of the treatment of pupils as individuals.” 

The Ninth Circuit held that § 15-112(A)(3) violates the First Amendment due to overbreadth, but held that §§ 15-112(A)(2) and (A)(4) were constitutional.  The trickier analysis in regard to plaintiffs' motivations.  Plaintiffs' alleged that the legislation was racially or ethinically motivated and motivated by viewpoint discrimination.  The former would violate the Fourteenth Amendment and the latter the First Amendment.  The district court had granted the defendant's motion for summary judgment on the the equal protection and view point discrimination claims.  The Ninth Circuit reversed and remanded, finding there were "genuine issues of fact regarding whether the enactment and/or enforcement of § 15-112 was motivated at least in part by a discriminatory intent." The court noted it is undisputed that “the statute was enacted almost entirely” to shut down the Mexican American Studies program in Tuscon.

July 20, 2015 in Discrimination, First Amendment | Permalink | Comments (0)

Friday, July 3, 2015

California Eliminates Religious Exemptions for School Vaccinations

On Tuesday, California Governor Jerry Brown signed legislation eliminating personal and religious belief exemptions from  public school vaccinations.  The new law makes California's vaccination law one of the most stringent laws in the country. The new law, taking effect January 1, 2016, mandates all children provide proof of vaccination for communicable diseases in order to attend school in California. The only exemptions are for medical reasons and must be approved by the State Department of Health.

California is only the third state to eliminate religious and personal belief exemptions for vaccinations. The legislation comes in the aftermath of a measles outbreak linked to Disneyland in California earlier this year. Supporters of the new law advocate that it will protect those children too young or sick to be vaccinated, while opponents of the law say it unfairly restricts parental choice.

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July 3, 2015 in First Amendment | Permalink | Comments (0)

Wednesday, July 1, 2015

Colorado Voucher Program Declared Unconstitutional

On Monday, the Supreme Court of Colorado in Taxpayers for Public Education v. Douglas County School District struck down a voucher program in Douglas County, finding that the Choice Scholarship Pilot Program violated separation of church and state doctrine under the state's constitution. The ruling reversed the decision in Taxpayers for Public Education v. Douglas County School District, a 2013 Colorado Court of Appeals decision upholding Douglas County’s voucher program.

The voucher program awarded taxpayer money to students who could use that money to pay for private schools, including some religious schools.  The court found that, in doing so, the voucher program facilitated students attending religious schools and amounted to aid of religious institutions. This violates the state constitutional provision that prohibits government aid to “any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school ... controlled by any church or sectarian denomination.” The Supreme Court of Colorado remanded the case, directing the lower courts to reinstate an order permanently enjoining the program.  

This holding based on state law is, of course, in contrast to the U.S. Supreme Court holding in Zelman v. Simmons-Harris.  There the Court held that voucher program in Cleveland, Ohio, did not violate the First Amendment, notwithstanding the fact that the program almost exclusively sent kids to private religious school.  Many state constitutions have provision that are more restrictive of the flow of public money to religious institutions.

July 1, 2015 in First Amendment | Permalink | Comments (0)

Thursday, June 25, 2015

Public Speech on College Campuses Is Not As Free As You Might Think

The Foundation for Individual Rights in Education has released it annual report on the state of free speech on college and university campuses.  The Foundation examined 437 schools and "found that more than 55 percent maintain severely restrictive, 'red light' speech codes—policies that clearly and substantially prohibit protected speech. Last year, that figure stood at 58.6 percent; this is the seventh year in a row that the percentage of schools maintaining such policies has declined."  Only five percent of schools, however, actually affirmatively protect speech.

One of the worst offenders was Missouri, where "over 85 percent of schools surveyed received a red light rating."  Virginia and Indiana were among the best, with "only 31 percent and 25 percent of schools surveyed . . .receiv[ing] a red light rating."  The Foundation attributes Virginia's numbers to recent legislation "designating outdoor areas on the Commonwealth’s public college campuses as public forums. Under the law, Virginia’s public universities are prohibited from limiting student expression to tiny 'free speech zones' or subjecting students’ expressive activities to unreasonable registration requirements."

June 25, 2015 in First Amendment | Permalink | Comments (0)

Monday, June 1, 2015

Federal District Court Overturns School Policy Allowing Distribution Of Only Student-Written Literature

The Western District Court of Washington overturned a student's suspension on Friday for preaching and distributing Christian literature, the Pacific Justice Institute reports. Cribbing from the Institute's press release: Plaintiff Michael Leal is a senior at Cascade High School, part of the Everett Public Schools system. Leal violated the school district policy several times by preaching and passing out religious materials about his Christian faith to fellow students during the school day. The district's policy limited passing out such materials to times before or after the school day at school building entrances or with permission from school administrators. The district also required that this literature be written or produced by a student. Leal was disciplined and threatened with expulsion for repeatedly violating the policy. The federal district court had stated earlier in the case that the district's time, place, and manner restrictions on such speech were appropriate but was "troubled" by that part of the policy that prohibited students from passing out materials that were not written by students. According to the Institute's report, the district court decided that part of the policy could not stand. The case is Leal v. Everett Pub. Sch., No. 2:14-CV-01762 TSZ, 2015 WL 728651 (W.D. Wash. 2015).

 

June 1, 2015 in Cases, First Amendment | Permalink | Comments (0)

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)

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)

Monday, April 27, 2015

OCR Reminds Districts and Universities to Designate Title IX Coordinators

On Friday, the U.S. Department of Education’s Office for Civil Rights new Title IX guidance.  It emphasizes the responsibility of school districts, colleges and universities to designate a Title IX coordinator. It also offers an overview of Title IX's requirements in regard to single-sex education, sex-based harassment, and discipline.  The press release is as follows:

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April 27, 2015 in First Amendment | Permalink | Comments (0)

Tuesday, April 14, 2015

Student Refused Services for Failing to Pledge Allegiance

On April 2, the school nurse at Pennsylvania's Carlisle Area School District purportedly "berated, humiliated, and otherwise mistreated" a student for opting out of the Pledge of Allegiance.  The nurse purportedly threatened to not serve the student.  This type of coercion is clearly prohibited under the Supreme Court's decision in West Virginia v. Barnette.  The American Humanist Society has filed a letter of complaint on the student's behalf.  Unfortunately, the is more conformation of my musings last week that action that is plainly prohibited by First Amendment precedent may be more normative in schools than we might otherwise imagine.  More on the current story here.

April 14, 2015 in First Amendment | Permalink | Comments (0)

Thursday, April 9, 2015

Normalizing Religion and Race in School (in bad ways)

According to local news in Duncan, Oklahoma a local third-grade teacher distributed Bibles to her students in class.  The Appignani Humanist Legal Center has threatened to sue unless the school takes action, although it is not clear what that action would be.  The Center learned of the Bible distribution when one student complained that he or she had been pressured into accepting a Bible.

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April 9, 2015 in First Amendment, Racial Integration and Diversity | Permalink | Comments (0)

Tuesday, April 7, 2015

New Scholarship on School Funding, Segregation, Native American Culture, Formerly Religious Charter Schools, and Tenure

The Brigham Young University Education and Law Journal has released its new issue, which includes several interesting articles.  The titles and abstracts are as follows:

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April 7, 2015 in Charters and Vouchers, English Language Learners, First Amendment, Racial Integration and Diversity, Teachers | Permalink | Comments (0)

Thursday, April 2, 2015

School Takes Down Gay-Straight Alliance Posting: How Censoring Speech Makes Things Worse

In Marshall, Michigan, members of the high school's Gay-Strait Alliance recently put up a public display on a hallway bulletin board promoting promoting transgender equality.  Their purpose, they say, was to let the LGBTQ community to know they are safe and accepted at school.  School policy is to leave information on the bulletin board for two weeks.  

Some parents, however, became aware of the bulletin board posting and began complaining to the administration. Shortly thereafter, the school took down the display, before the two weeks had transpired.  Kate Samra, president of the Gay Straight Alliance at the high school, said she “met with the principal of my school today and he said he felt like the situation needed to be diffused, so that’s why he did take the board down.”  Marshall’s superintendent, Randy Davis, also acknowledged that parental complaints played a role.  “We have had complaints once in a while from a parent about that,” he said. “In our environment, it doesn’t feel like there’s any controversy at all; in the world of Facebook, it seems like it’s on fire.”

The bulletin board would seem to have been a public forum.  If so, the school could only censor student speech if it created a substantial disruption or was lewd/plainly offensive.  Schools cannot censor speech simply because it might generate uncomfortable speech.  While we only have sparse facts, the school's intent seems to have been to avoid uncomfortable conversations with parents, not actual disruptions in school.  There is no indication that the bulletin posting had caused any disruption within school, but taking it down has set of an entirely new conversation and students are now protesting.  If the school thought censoring speech would diffuse the situation, they were mistaken.  From the students' perspective, this also suggests a school that is potentially hostile to LGBTQ rights, which could come back to haunt the school should any Title IX harassment claims arise later.

Postscript:  My colleague, Josie Brown, also pointed out that a bulletin board is technically part of the facilities and, thus, would be subject to the federal Equal Access Act, which prohibits discrimination in regard to individuals who are announcing or wishing to have meeting.  See 20 USC 2071.

April 2, 2015 in First Amendment, Gender | Permalink | Comments (0)

Monday, March 30, 2015

New York City Schools to Close on Muslim Holidays: Accommodation or Establishment?

On March 3, New York City schools announced that they will begin recognizing two major Muslim holidays beginning in the upcoming 2015-2016 school year. The two holidays to be recognized are Eid al-Fitr, celebrated at the end of Ramadan, and Eid al-Adha, a feast of sacrifice celebrated in late September this year. While New York City is the largest district in the United States to include these holidays on its academic calendar, it is not the first. Massachusetts, Michigan, and New Jersey all have districts that have taken similar steps.  New York, however, has a proportionally larger number of Muslim students affected. New York City school district has just over 1.1 million students and "[a] 2008 study by Columbia University found that 10 percent of [the district's] student body is composed of Muslims." Some school have a significantly greater percentage of Muslim students. The Brooklyn public school that was referenced in the superintendent's announcement reported that 36 percent of its students missed school on the last Eid al-Adha.

This is in contrast to Montgomery County, Maryland, which rather than recognize Muslim holidays, stripped all formal acknowledgement of religious holidays from its school calendar.  The facts there were far different, but I suggested the district probably got it correct under the Establishment Clause.  Which side of the line New York falls on is a closer call.  The question is whether the school is accommodating the free exercise of religion (because to do otherwise is an administrative burden) or whether it is accommodating religion for the purpose of promoting it/pleasing its adherents. Given the size of the Muslim population in the schools, the City can more easily make the former argument and render the policy constitution, although the mayor and superintendent's announcement of the new policy included potentially problematic statements suggesting the latter. Their statements, however, may be political grandstanding, as opposed to indications of school level motivations.

March 30, 2015 in First Amendment | 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

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)