Tuesday, March 21, 2017

Court Upholds Prayer at School Board Meetings, Overlooking Their Judicial and Executive Functions That Suggest a Different Result

The Fifth Circuit Court of Appeals in American Humanist Association v. Birdville Independent School District has upheld a First Amendment challenge to student prayer at school board meetings.  The court offered this summary of the facts:

BISD’s board holds monthly meetings in the District Administration Building, which is not located within a school. The meetings include sessions open to the public. Attendees are free to enter and leave at any time. Most attendees are adults, though students frequently attend school-board meetings to receive awards or for other reasons, such as brief performances by school bands and choirs. Since 1997, two students have opened each session—with one leading the Pledge of Allegiance and the Texas pledge and the other delivering some sort of statement, which can include an invocation. Those student presenters, typically either elementary- or middle-school students,2 are given one minute. BISD officials do not direct them on what to say but tell them to make sure their statements are relevant to school-board meetings and not obscene or otherwise inappropriate. At a number of meetings, the student speakers have presented poems or read secular statements. But according to AHA and Smith, they are usually an invocation in the form of a prayer, with speakers frequently referencing “Jesus” or “Christ.” AHA and Smith claim that sometimes the prayers are directed at the audience through the use of phrases such as “let us pray,” “stand for the prayer,” or “bow your heads.”

From 1997 through February 2015, the student-led presentations were called “invocations” and were delivered by students selected on merit. In March 2015, in an apparent response to AHA’s concerns about the invocations, BISD began referring to them as “student expressions” and providing disclaimers that the students’ statements do not reflect BISD’s views. BISD began randomly selecting, from a list of volunteers, the students who would deliver the expressions.

The court recognized that two different lines of precedent potentially controlled the case--one dealing with legislative prayer and the other with school prayer.  

Like [the legislative precedent], this dispute is about the constitutionality of permitting religious invocations at the opening, ceremonial phase of a local deliberative body’s public meetings. But like [the school prayer cases], this case is about school-district-sanctioned invocations delivered by students on district property. We agree with the district court that “a school board is more like a legislature than a school classroom or event.”

The court also cited to other courts that had reached a similar conclusion in the past--Coles ex rel. Coles v. Cleveland Board of Education, 171 F.3d 369, 383 (6th Cir. 1999), and Doe v. Indian River School District, 653 F.3d 256 (3d Cir. 2011).

The court's mechanical analogies to legislative versus school prayer cases, however, overlooks the fact that school board meetings do not really fit into either category.  The problem with pigeonholing school board meetings is that school board perform all three functions of government.  When they debate and vote on school board policies, they operate as legislative bodies, just like a city council.  In this context, Town of Greece v. Holloway held that can be permissible prayer.  

In contrast, when a student appeals an expulsion to the school board, the board functions as an adjudicative body, much like a court (albeit under different rules).  In a court setting, the mere posting of the Ten Commandments is unconstitutional, to say nothing of prayer.  See McCreary County v. American Civil Liberties Union of Ky.  

When school boards deal with business issues, such as hiring a superintendent, dealing with teacher issues, entering into contracts for services, they perform an executive function.  Moreover, the school board is the employer of countless citizens who may feel that their positions would in some way be compromised depending on whether they participate in the religious ceremonies that precede school board meetings.  In the carrying out executive functions, Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), indicates that even clever processes that allow students to make the decision regarding whether to lead prayer does not insulate a district from the limits of the First Amendment.  In short, if the school sets up a process that leads to school sponsored prayer, it is unconstitutional.

This differing contexts suggest the question could be whether a different rule applies depending on what the business of the day is for the school board.  Yet, this level of nuance is problematic because it would mean sometimes school boards can have prayer and sometimes they cannot.  Clarity likely outweighs nuance here.  The more sensible approach would be to ask whether the executive and adjudicative functions of school boards are substantial enough overall to subject school boards to the constitutional limits that apply to those functions.


March 21, 2017 in First Amendment | Permalink | Comments (0)

Tuesday, March 14, 2017

Robert Post on Free Speech and Academic Freedom

The University of South Carolina School of Law is hosting a lecture by Robert Post, dean of Yale Law School, titled “Freedom of Speech and the Modern University.  The lecture is March 23 at 5 p.m.  Of course, South Carolina has faced its own challenges on the subject in recent years.  Here is the announcement:


In February 2014, the University of South Carolina, USC Upstate, and the College of Charleston were at risk of losing state funding because of certain textbooks and courses. In 2016, two professors at Clemson University were among more than 200 across the nation who were put on the “Professor Watchlist,” which says it names instructors who “advance a radical agenda in lecture halls.” And more recently, faculty and staff at the College of Charleston have grappled with where the line between freedom of speech and being a respectful instructor blur.

After the 2016 election, the school’s provost and vice president of academic affairs, Brian McGee, reported several complaints from students who had “perceived that election discussions in a class meeting were not relevant to course content, were inappropriately one-sided, or were crudely partisan.” Following those reports, the school’s president, Glenn McConnell, enacted a new online presence that would “offer students a way to express their concerns, as well as provide faculty, staff, and administrators an excellent tool for improvement.”
But what startled faculty was the quickness at which the school had reacted to student’s complaints without stopping to check their validity. Professors wondered what role the complaints would play in the promotion and tenure of faculty. It also sparked a discussion state-wide about when and how to teach subjects that are innately political.

In a January article in the Charleston City Paper, Professor W. Scott Poole said, “In my class today, we are reading a section of a book that talks about the pro-Nazi ‘American First’ movement in the 1930s represented by Charles Lindbergh. I would be remiss as a teacher if I did not point out that this phrase was used in [President Trump’s Inaugural Address] as a kind of mantra. Is this crudely partisan or am I simply stating a historical fact for my students to then discuss and analyze?”
Put another way, if fact is couched as opinion, how does one teach without bias, and how does one learn without discrimination? In a deeply divided nation and an era of “alternative facts,” those types of questions are being asked even more frequently by students and professors alike.
For Post, the answers go all the way back to 1791, when the First Amendment was ratified. It created a culture that enjoyed and encouraged freedom of speech, and until the 1930s, courts had little to no role in protecting those rights. But as World War I began, judges had to rethink their role as freedom of speech transitioned into an “organized sway of public opinion.”

Post is an expert of constitutional law, First Amendment rights, legal history, and equal protection. Before his time as dean and professor at Yale Law, he taught at the University of California, Berkley School of Law. He has written and edited numerous books, including Citizens Divided: A Constitutional Theory of Campaign Finance Reform. Much of his knowledge has been learned over a career spent on college campuses, where discussions about freedom of speech frequently arise.
In his lecture, Post will explore the growth of the First Amendment from the perspective of the law, as well as practical application as an educator, and a student. He looks to examine the challenge between freedom of speech and freedom of expression, and why more than ever, free speech on college campuses should be preserved, allowing schools to exist as the “marketplace of ideas.”

The lecture is free and open to the public.

March 14, 2017 in First Amendment | Permalink | Comments (0)

Monday, January 23, 2017

Lawsuit Alleges West Virginia Public School System Offers Bible Classes

Somehow, every year the Freedom from Religion Foundation manages to find cases that, if the allege facts are accurate, boggle the mind because the obvious constitutional problems they raise. This year is no different.  The organization just released this press release regarding what it claims is a 75-year old practice of Bible study classes at school.  The press release offers this summary: 

The Freedom From Religion Foundation has filed its first lawsuit of the year to end egregiously unconstitutional "Bible in the Schools" classes in Mercer County Schools, W.Va. 

Joining FFRF as primary plaintiffs in the case filed on Jan. 18 are Jane Doe, an atheist and member of FFRF, and her child, Jamie Doe. FFRF and Jane Doe contend Jamie faces "an untenable choice" next year — whether to participate in unconstitutional bible indoctrination or face likely ostracism by conspicuously opting out.

The bible instruction, taught by itinerant teachers who possess "a degree in Bible," begins in first grade. Classes are held in 15 elementary schools, one intermediate school and three middle schools. The classes meet weekly and last 30 minutes in elementary schools and 45 minutes in middle schools.

The defendants are Mercer County Board of Education, Mercer County Schools, and Superintendent Deborah S. Akers.

Bible indoctrination classes have been taught in Mercer County Schools for more than 75 years. Between 1939 and 1985, the bible classes were designed, financed, administered and staffed by a small group of Mercer County citizens. Following complaints by parents of eight students in 1985, the Mercer County schools took over the instruction in 1986, claiming to follow nine guidelines from the Office of the Attorney General.

Financing is provided by the "Bluefield Bible Study Fund, Inc.," which operates a fund to pay bible teachers to instruct about 4,000 students. Bible teachers must follow lesson plans almost without deviation. There are 70 to 90 visuals used in each lesson. Lessons have included images of Jesus being tortured, nailed to the cross, and ascending into heaven.

The curriculum is the equivalent of sectarian Sunday school instruction. Goals include developing a "positive attitude" toward biblical literature, "understanding the importance of the Ten Commandments," and "harmonizing the four gospel accounts of the last days of Jesus."

FFRF's legal complaint lists examples of the proselytizing curriculum. Lesson 2 promotes creationism by claiming humans and dinosaurs co-existed. Students are asked to "picture Adam being able to crawl up on the back of a dinosaur! He and Eve could have their own personal water slide! Wouldn't that be so wild!"

Lesson 6 exhorts students to follow the Ten Commandments and to "have no other god than the Lord God!" Lesson 25 indoctrinates young students in the core narrative of Christianity — the alleged crucifixion and resurrection of Jesus.

FFRF Co-President Annie Laurie Gaylor notes: "The U.S. Supreme Court ruled such religious instruction unconstitutional more than 65 years ago, in the landmark McCollum v. Board of Education. It's unacceptable that such clearly unconstitutional indoctrination is still being conducted in any public schools." FFRF won a court victory before the 6th U.S. Circuit Court of Appeals ending similar bible instruction in Rhea County (Dayton), Tenn., schools in 2004.

Mercer County, whose county seat is Princeton, has a population of about 63,000.

FFRF v. Mercer County Board of Education was filed on Jan. 18 in the U.S. District Court in the Southern District of West Virginia, with Marc Schneider serving as primary litigating attorney and FFRF Staff Attorney Patrick Elliott as co-counsel. FFRF thanks FFRF extern Chris Line for his research and preparation of the complaint.

Get the complaint here.

January 23, 2017 in First Amendment | Permalink | Comments (0)

Monday, September 12, 2016

Second Circuit Dismisses Student-Plaintiffs' Suit That Claimed Taxpayer Money Was Diverted To Fund Private Religious Schools

A divided Second Circuit held today that student-plaintiffs in the East Ramapo (N.Y.) School District lacked standing to challenge the alleged diversion of public funds to religious institutions in their district. In Montesa, et al. v. Schwartz, et al., taxpayer and student plaintiffs alleged that school board members of the East Ramapo School District had an under the table agreement to allow Orthodox/Hasidic Jewish parents to invoke the Individuals with Disabilities Education Act to have their children placed in largely Hasidic schools. The parents did this, the plaintiffs claimed, by simply  writing a letter to the school board disagreeing with the placement of their children in the public schools. School board members would then pass a private placement resolution in lieu of an Impartial Hearing under the IDEA and reimburse the parents for the private religious school tuition. One problem with this, the plaintiffs argued, was that the school district would not be entitled to federal or state reimbursement for these students because the settlements occurred before an Impartial Hearing under the IDEA. The plaintiffs alleged that the school board defendants thus diverted funds away from the district's public schools and into Hasidic religious institutions. In today's decision, the Second Circuit held that the student‐plaintiffs lacked standing to assert an Establishment Clause claim because they were  only indirectly affected by the conduct alleged to violate the Establishment Clause. The circuit court, which upheld the district court ruling, found that the students were not directly exposed "to the unconstitutional establishment of religion.” A taxpayer suit on similar grounds is proceeding in federal district court. The opinion is here.

September 12, 2016 in Cases, First Amendment | Permalink | Comments (0)

Monday, August 15, 2016

High School Football Coach Dismissed for Praying; Facts, Not Rhetoric, Will Matter Most

First, let me say that that what I have learned about Joseph Kennedy, an assistant football coach at a public high school in Bremerton, Washington, is mostly from second-hand reporting.  His story has burned up the the internet and airways with hard line positions on both sides, so much so that finding primary reporting is hard.

Here are what I understand to be the facts.  For the past several years, Mr. Kennedy has engaged in religious exercises, apparently before and after games.  Before games, he prayed. After games, he prayed and/or offered some sort of religious "inspirational talk" at mid-field. Sometime in the last year, the school district sent him a letter telling him to stop.  Kennedy is said to have continued his activities in defiance.  It is my understanding that he was fired.

When the Liberty Institute learned of this, it came to his defense indicating it would sue the school district for religious discrimination.  Since then, politicians, both local and national, have gotten into the fracas.  According to the Seattle Times, forty-seven members of Congress sent a letter in support of Kennedy.  He has apparently now filed his lawsuit, giving the story legs again.

Once one cuts through the rhetoric, it seems to be that this case boils down to a few key facts.  First, was Kennedy, in fact, leading a prayer before games?  The law is clear that the state cannot lead religious exercises or direct others to do so.  The assistant football coach is a state actor.  Thus, he cannot lead students in a prayer.

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August 15, 2016 in First Amendment | Permalink | Comments (1)

Tuesday, June 14, 2016

Federal Court Refuses to Expand School Voucher Program That Was Declared Unconstitutional By Colorado Supreme Court A Year Ago

Almost a year after the Colorado Supreme Court declared that a district's school voucher program violated the state constitution's separation of church and state doctrine (which Derek discussed here), a federal district court in Colorado denied a renewed attempt last week to force the Douglas County (CO) School District School Choice Grant Program to include religious schools, according to the Denver Post. The federal court questioned whether the plaintiffs, represented by the religious-freedom organization Institute for Justice, were in a truly adversarial position with the defendant, the Douglas County School District. The federal court also questioned whether the plaintiffs could show a likelihood of success to warrant an emergency injunction. The court also stated that the Douglas County families seeking the voucher expansion could not show irreparable harm because only a few students had even shown interest in the program and no schools have yet agreed to participate in the School Choice Grant Program. The ACLU of Colorado and law firm Arnold & Porter have moved to intervene in the case, arguing that the plaintiffs’ motion for preliminary injunction is essentially a collateral attack on the Colorado Supreme Court's judgment.

June 14, 2016 in Charters and Vouchers, First Amendment | Permalink | Comments (0)

Tuesday, April 19, 2016

School District Sued for Refusing to Notify Students of Scholarship Opportunity Aimed at Atheists

Navigating the lines between the Establishment and Free Exercise of Religion Clauses of the First Amendment is one of the toughest jobs a school has.  It becomes even more difficult when free speech rights come into play, as schools can easily misdiagnose free speech issues as religion issues.  While the state might distance itself from religion, it cannot use that as an excuse to squelch speech of a religious nature.  By the same token, it cannot squelch speech unfavorable to religion unless the speech is objectionable on neutral grounds, such as material and substantial disruption. A new case out of Antelope Valley School District in California brings these issues to the fore with an interesting set of facts.  Last week, the Freedom From Religion Foundation and The Antelope Valley Freethinkers, along with a local plaintiff, sued the school district for its refusal to put students on notice of scholarships that Foundation and the Freethinkers were going to make available to students in the district.  The plaintiffs argue that the district's refusal was viewpoint discrimination prohibited by the First Amendment.  I also have some sneaking suspicion that the Foundation and Freethinker's decision to offer a scholarship was a strategic one in response to the fact that another scholarship was already being offered in the district to students of religious faith.  The scholarships called on plaintiffs to write an essay in response to prompts.  

The first scholarship's prompt is as follows:

A freethinker is someone who develops opinions based on science and reason in contrast to faith and dogma. Write from a personal perspective encounters you’ve had when you object to or raise logical- or evidencebased challenges to statements of faith or dogma within your family, your school, or the Antelope Valley at large. Perhaps you’ve been ridiculed, harassed, or punished for speaking up against religion in the classroom, at school events, in government, or within your family. Perhaps you’ve been successful in convincing others of your position. Discuss the effects on you and those around you as you’ve dealt with these encounters.

The second scholarship included two prompts:

“Young, bold and nonbelieving: Challenges of being a nonbeliever of color.” Write from personal perspective about experiences or challenges you face, as a nonbeliever in a religious family or community, and minority within the freethought community. Are there obstacles discouraging diversity within the movement? What do you think could be done to make freethought and nonbelief more attractive to America's nonwhite communities? Include at least one paragraph about why you are a nonbeliever.

“Why I’m Good Without God: Challenges of being a young nonbeliever” Write from personal perspective about your experiences or challenges in the face of persistent stereotypes that atheists and other nonbelievers are not moral. Explain how you're “good without God,” why religion is not necessary for morality and may even be counterproductive. What can you or others do to counter negative stereotypes about nonbelievers? Include at least one paragraph about why you are a nonbeliever.

According to the complaint:

Deputy Superintendent Foster called Dionne on May 19 to explain that the District was rejecting the [Foundation's] scholarship because the wording of the essay prompt would upset parents.

Dionne took notes on the conversation: “In a phone conversation yesterday, [Foster] said he couldn't approve the scholarship the way it was worded because it would upset some parents. In particular, he cited the following sentence as particularly objectionable: ‘Perhaps you’ve been ridiculed, harassed, or punished for speaking up against religion in the classroom, at school events, in government, or within your family.’”

Dionne offered to reword the prompt, but Foster told Dionne by email on May 21, “We simply do not have the time to ‘word smith’ language that might be acceptable to the district and yet meet the intent of your organization. If you wish toconsider a pursuit of this matter – I would invite this potential dialogue early next spring, when we would have time to consider alternate language.”

The scholarship Dionne had submitted was not due until July 1, 2014. FFRF sent the District a letter on July 8, 2014 objecting to the District’s censorship of AVF’s scholarship and asking that the District approve and distribute the scholarship opportunity. FFRF did not receive a response and sent a follow up letter on October 7, 2014. Dionne emailed Foster on September 8, 2014 and again on September 23, 2014 asking to meet about revisions to the scholarship. Foster told Dionne on September 29 that he had moved to another position, and his replacement, Greg Nehen, would be contacting Dionne soon about the scholarship. Nehen never contacted Dionne.

Dionne emailed another copy of the AVF scholarship to the District on November 17, 2014. In a December 10, 2014 the District’s General Counsel Bridget L. Cook, responded to FFRF’s July 8 and October 7 follow up letters and Dionne’s second request.  Cook stated, “since the District is a limited public forum, we reserve the right to determine what information we allow to be disseminated in our schools.” Cook explained that the District was rejecting AVF’s scholarship because, “The Antelope Freethinker's initial proposed scholarship essay prompt appears to promote anti-religious expression. Even if the phrase in question is removed, the prompt still contains an aggressive undertone towards religion.”

FFRF Co-President Dan Barker sent the District a letter on March 2, 2015 requesting that FFRF’s annual high school essay contest be advertised to the District’s students as it regularly did for other organizations’ scholarships. On April 23, 2015 Cook responded to FFRF’s request: “the District will not be distributing this scholarship information to students” because “[y]our Foundation’s proposed scholarship essay prompts appear to promote anti-religious expression and contain argumentative undertones toward religion.” Cook claimed that the District was a “limited public forum” which “reserve[d] the right to determine what information we allow to be disseminated in our schools." Cook cited Board Policy 6142.2 as stating, “Staff shall not endorse, encourage, or solicit religious or anti-religious expression or activities among students.” 

Get the full complaint here.

April 19, 2016 in First Amendment | Permalink | Comments (0)

Monday, March 21, 2016

As Transgender Rights Spread at the Federal Level, So Too Do State Level Efforts to Block Them

The Obama Administration has taken consistent and progressive steps to protect the rights of LGBTQ youth, including policy guidance and most recently filing a brief in favor of Gavin Grimm in his Fourth Circuit appeal seeking equal access to facilities at his school.  But as these progressive steps occur at the federal level, some states are attempting to move backward.  Earlier this month, I posted on a Tennessee School District that would rather eliminate all extracurricular activities than allow the Gay-Straight Alliance to form in its schools.  Now that way of thinking as edged up the road to the state house.  This time, however, the policy is even more pernicious and not just about extra-curricular activities, and not just about elementary and secondary schools.  Tennessee is considering legislation that permanently exclude transgender students from bathrooms and locker rooms at its public schools and its colleges and universities. The legislation would require students to use facilities that match the sex “indicated on the student’s original birth certificate.” The full text provides:

SECTION 1. Tennessee Code Annotated, Title 49, Chapter 2, Part 1, is amended by adding the following language as a new section: Public schools shall require that a student use student restroom and locker room facilities that are assigned for use by persons of the same sex as the sex indicated on the student’s original birth certificate.

SECTION 2. Tennessee Code Annotated, Title 49, Chapter 7, Part 1, is amended by adding the following language as a new section: Public institutions of higher education shall require that a student use the restroom and locker room facilities that are assigned for use by persons of the same sex as the sex indicated on the student’s original birth certificate.

SECTION 3. This act shall take effect upon becoming a law, the public welfare requiring it.

As Tennessee law currently stands, this new legislation would lock-in exclusion for transgender students because another state law prohibits the state from recognizing sex changes on birth certificates.  As many recall, South Dakota passed similar legislation recently, but the governor there vetoed it.  


March 21, 2016 in First Amendment | Permalink | Comments (0)

Campus Speech and the Functions of the University

Professor R. George Wright, Indiana University Robert H. McKinney School of Law, has posted a new article to ssrn titled Campus Speech and the Functions of the University.  His offers this description in his abstract:

The roles and limits of free speech on university campuses have lately been of increasing interest. This Article suggests that as long as our understandings of the basic functions of the university itself are conflicting and contested, our understandings of the proper scope of free speech on campus will be similarly irreconcilable, even if we think of the university in terms of community. The Article explores this thesis through considering, in particular, problems of hostile speech, of professorial academic freedom, and of speech by students transitioning into professional service roles.


March 21, 2016 in First Amendment | Permalink | Comments (0)

Wednesday, March 9, 2016

Tennessee School Board Seeks to Exclude Gay Straight Alliance

According to local news report, the Franklin County School Board in Tennessee is considering taking a radical step simply to prevent a Gay-Straight Alliance from forming in the district: eliminate extracurricular activities altogether.  A federal statute mandates that once schools open their doors to student groups (and outside groups) that they open their doors equally to everyone.  The initial intent behind the statute was to ensure equal access to religious groups.  The statute specifically paved the way for church's to begin holding services in some schools.  Gay-Straight Alliances have used this legislation to their benefit in numerous communities that would have otherwise excluded them.  Apparently, Franklin County would rather keep everyone out than let the Gay-Straight Alliance in.

The New Civil Rights Movement reports:

The GSA at Franklin County High School in Winchester has been under attack since it first met in January, with parents comparing it to ISIS, and students vandalizing the club's posters andwearing "Straight Pride" signs in protest. 

Last month, anti-LGBT residents who spoke at a school board meeting warned that the GSA is part of a "radical gay political agenda" that seeks to recruit children:

In response to the controversy over the GSA, the Franklin County School Board has decided to draft new guidelines for student organizations. Under the federal Equal Access Act, officials must allow the GSA unless they eliminate all extracurricular clubs, from the Fellowship of Christian Athletes to the Student Council. 

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March 9, 2016 in First Amendment, Gender | Permalink | Comments (0)

Tuesday, March 1, 2016

Taylor Bell's Rap Song Comes to an End; Supreme Court Denies Certiorari

Yesterday, the U.S. Supreme Court denied certiorari in Taylor Bell's case.  The case involved a high school student who had written and performed a song on youtube.  The song was an attempt to raise awareness regarding allegations that some of the male coaches at his school had been sexually harassing female students, but which the school officials has purportedly ignored. His cause caught national attention, with no less than Killer Mike coming to his support in the form of an amicus brief and media attention.  Bell also had an excellent legal team, having secured the pro bono services of Lisa Blatt, Stanton Jones, Elisabeth Theodore and William Perdue (along with others) at Arnold and Porter.

The case seemed like the perfect platform for the Court to finally resolved open questions regarding schools' authority to punish off-campus and on-line activity and speech.  The denial of certiorari means that the Fifth Circuit Court of Appeals decision is controlling.  An en banc panel of the Fifth Circuit held that the First Amendment allows public high schools to censor off-campus speech, although the panel was deeply fractured with differing rationales and dissents.  One has to suspect that the death of Justice Scalia and the possibility that the Court would not be able to produce a binding decision played no small role in the denial of certiorari.

As Mark Walsh at Edweek reports, the Court also denied certiorari in a few other education cases:

The court also refused to hear the appeal of a Tennessee school district whose decision to outsource its alternative education program to a private Christian school was struck down by two lower federal courts as a violation of the First Amendment's prohibition against government establishment of religion.

Also, the justices declined to step into a New Jersey dispute over whether the state was required by one of its own statutes to increase state and employee contributions to its pension system for teachers and other employees.

The high court did not act on appeals of a decision by the Colorado's highest court that struck down a local voucher program because it aided religious schools in violation of the state constitution. The justices could still grant those appeals, or it could be holding them for a related case they will hear next term. Those cases are consolidated under the caption Doyle v. Taxpayers for Public Education (Case No. 15-556).

March 1, 2016 in First Amendment | Permalink | Comments (0)

Monday, February 29, 2016

Oklahoma Bill to Teach Anti-Abortion Curriculum Raises Free Speech and Religion Concerns

Last week, the Oklahoma House Appropriations and Budget Subcommittee on Education introduced a bill titled the "Humanity of the Unborn Child Act."  The bill would require public schools to include anti-abortion messages in their curriculum.  Specifically, the bill would direct the State Department of Education to

  • develop programs to education  public "about the the humanity of a child in utero."
  • to educate students in grades 9 through 12 about the "humanity of the child in utero."
  • "[d]evelop and make available materials designed to provide accurate, scientifically verifiable information concerning the probable anatomical and physiological characteristics of the unborn child at two-week gestational intervals."
  • "[d]evelop, update annually and maintain information concerning public and private agencies and services available to assist a woman through pregnancy, upon childbirth and while the child is dependent, which shall include a comprehensive list of the agencies available,including adoption agencies, a description of the services they offer and a description of the manner, including telephone numbers and email addresses, by which they might be contacted."
  • distribute materials "for the purpose of achieving an abortion-free society." 
The critics of the bill question why it was not part of an overall sex education program.  Instead, the bill involves an independent mandate.  They also argue that it is not designed to deliver scientifically accurate information.

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February 29, 2016 in First Amendment | Permalink | Comments (0)

Monday, February 22, 2016

Mississippi's Education Chair Introduces Bill That Appears to Limit Teachers' Free Speech; Why?

Mississippi's chairman of the House Committee on Education, John Moore, has renewed his bill to place limits on teacher's activities while at school.  Some call the bill a directive for teachers to "shut up" or to "muzzle teachers." Given the larger context of education budget battles over the past year or two in the state and teachers' role in it, the bill may be aimed at tamping down political activity among teachers while at school. A local reporter offers this summary of the bill:

[The bill levels] $10,000 fines and revok[es] teacher licenses. But without any provision for who can file a complaint, or to whom, it appears the education chairman's bill is reactionary and not well thought out. Snowden's bill, while similar, is not as toxic and is more measured. It only has fines of $100 for the first offense and $250 for each further offense, to be investigated by the secretary of state's office. Complaints can be filed by "any state or federal oversight, enforcement or regulatory governmental entity," which includes those poor, harassed legislators.

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February 22, 2016 in First Amendment, School Funding, Teachers | Permalink | Comments (0)

Tuesday, February 9, 2016

Middle School Boy Told to Take Off "Elsa" Dress on Spirit Day, Raising Free Speech and Sex Discrimination Issues

According to local news outlet, Ethan Chase Middle School in Menifee in South California held a spirit day last week and students were encouraged to wear Disney costumes.  One boy, Austin Lacey, dressed up as Elsa from the movie "Frozen."  Apparently, he was a big hit with his friends and several asked to have their picture taken with him.  The school principal, however, told him to take the costume off. According to Austin's mom, the principal felt that the costume was inappropriate for boys.  Whether the principal entirely disputes that claim or believes he had the authority to make Austin change in any event is a little unclear.  The superintendent released a statement in support of the principal, indicating that: "This action was taken in accordance with district policies. At no time was there an indication that the student was expressing any particular message. The Principal's action was based upon the need to stop a general disruption to the school environment."

The statement sounds as though it came straight out of the First Amendment playbook for school officials: the action was not "viewpoint based" and was intended to prevent a "substantial disruption," which Tinker v. De Moines, 393 U.S. 503 (1969), would permit. To be clear, I am not disputing the superintendent's version of the story.  I have no basis to know whether that statement is accurate or not.  If it is accurate, Austin has nothing to complain about.  I would highlight, however, that too often mouthing these words has been enough for courts to defer to districts, even when the facts do not square up.

Here, if Austin had worn the costume on some random day, the district's action would easily stand up to scrutiny because it likely would be disruptive.  The fact that Austin wore it on a spirit day makes the response far more questionable.  Spirit day itself causes some level of disruption--disruption which the school has affirmative made the decision to tolerate it believing that it serves some great value.  In that context, it would seem that the school would need to show that Austin's dress caused some disruption/excitement above and beyond what was already occurring.  Otherwise, it would appear that he was being singled out.  

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February 9, 2016 in First Amendment, Gender | Permalink | Comments (0)

Monday, February 1, 2016

Texas Cheerleaders' Bible Verse Case to Proceed to the Merits

On Friday, the Texas Supreme Court held that a group of high school cheerleaders can proceed in their challenge to Kountze Independent School District's former prohibition on displaying banners at football games with Bible verse on them.  The case has gotten national attention and generated several judicial opinions.  

After prohibiting the banners and being sued, the District later changed its policy to provide that the District is “not required to prohibit messages on school banners . . . that display fleeting expressions of community sentiment solely because the source or origin of such message is religious,” but “retains the right to restrict the content of school banners.” This policy change allowed the cheerleaders to once again display their banners. The district had hoped this would end the matter, but the cheerleaders persisted in their legal challenge.

The most recent decision from the Texas Supreme Court simply holds that this change in policy does not moot the case and the plaintiffs can proceed in seeking an injunction.  This seems like a pretty obvious result, rather than a substantive victory for the plaintiffs.  The above stated policy clearly leaves the district enormous discretion to prohibit the banners should they see fit.  Thus, the plaintiffs still have a basis to seek an injunction.

The case is now on its was back to the Court of Appeals to deal with the merits of whether the district violated the students' free speech rights. The merits are particularly fascinating.  See my earlier post on the issues here.


Get the full opinion here.

February 1, 2016 in First Amendment | Permalink | Comments (0)

Tuesday, January 26, 2016

Supreme Court Grants Certitorari in Case Challenging Denial of Grant Funds to Religious School

The U.S. Supreme Court has granted certiorari in Trinity Lutheran Church v. Pauley, No. 15-577 (cert. grant. Jan. 15, 2016), which challenges Missouri's establishment clause barring the grant of public funds to a church.  The church sued Missouri officials after being denied a grant of waste management funds to resurface a school playground on church property. On appeal, the Eighth Circuit affirmed the dismissal of the church's suit, citing Missouri's "high wall" against religious entanglement. Cribbed from the Questions Presented summary:

Trinity Lutheran Church applied for Missouri's Scrap Tire Grant Program so that it could provide a safer playground for children who attend its daycare and for neighborhood children who use the playground after hours--a purely secular matter. But the state denied Trinity's application solely because it is a church. The Eighth Circuit affirmed that denial by equating a grant to resurface Trinity's playground using scrap tire material with funding the devotional training of clergy. The Eighth Circuit's decision was not faithful to this Court's ruling in Locke v. Davey, 540 U.S. 712 (2004), and deepened an existing circuit conflict. Three lower courts--two courts of appeals and one state supreme court--interpret Locke as justifying the exclusion of religion from a neutral aid program where no valid Establishment Clause concern exists. In contrast, two courts of appeals remain faithful to Locke and the unique historical concerns on which it relied.

The question presented is “[w]hether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.”

Mark Walsh at The School Law Blog notes the potential impact of this case and another cert. grant, Douglas Cnty. School Dist. v. Taxpayers for Public Education, which if interpreted broadly, may challenge "Blaine amendments" language in several state constitutions.

January 26, 2016 in Cases, First Amendment | Permalink | Comments (0)

Monday, January 11, 2016

Firing of New York City Teacher Raises First Amendment and Performance Issues

The story of teachers--or any employee for that matter--who spoke up on a controversial reason only to be later terminated for performance based reasons is an old one.  Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), was, of course, a due process case in which a professor on a one-year contract did not have his contract renewed.  The Court held he was not entitled to due process, but from Roth's perspective the case was about free speech, not due process, as he had taken up students' fight for racial equity on campus.  He claimed this was the reason for his non-renewal.

A recent firing of a New York City public school teacher, Jeena Lee-Walker, raises some of the same issues.  Her controversy centers around her decision to teach students about a group of wrongly convicted African American males.  Their story has been a source of major news in the city.  In a lawsuit challenging her termination, Lee-Walker says that when she first proposed to teach the subject her superiors indicated she should offer a more “balanced” approach to the case.  Otherwise, she might “rile up” the students and create little "riots." At their urging, she toned down her approach, but still presented the case in a way that she said led students to be very engaged in the subject matter.  

In the eighteen months following the episode, she received a series of bad performance reviews, which led to termination based on poor evaluations and insubordination.  As emphasized here, gauging "teaching effectiveness" based on student test scores--the method NYC uses--is methodologically flawed.  Litigation challenging the state's teacher evaluation system is currently underway.  What may be interesting in Lee-Walker's case is if she can turn her teacher evaluations against the state.  Valid or not--if her statistical outputs are strong--it will undermine the city's case.  If they are weak, she may be forced to challenge the evaluation method itself.  Otherwise, the state would appear to have an objective reason for the termination.  Regardless, issues of motivation and retaliation will only further complicate the case.  Sounds like a good hypothetical for class or a final exam.

More on the backstory here.

January 11, 2016 in First Amendment | Permalink | Comments (0)

Tuesday, December 22, 2015

Taylor Bell's Message Really Is Getting Out, All-Star List of Rappers, Professors, and Others Join His First Amendment Plea to the Supreme Court

Somewhat in jest, my earlier posts said that Taylor Bell really knows how to get his message out.  Taylor Bell is  a high school student who was suspended and sent to alternative school for writing and posting a rap song to the internet that outed coaches at his school who were accused of sexually harassing students.  It now seems that he really did pick the perfect medium and genre to do so.  Grammy award winning musicians have filed a brief in his support, upping the profile of the case even more and a potentially nudging the scales toward a grant of certiorari that would decide key speech issues in school that the Court has conveniently avoided for several years.  Among the most notable names on the brief is Michael Render (aka “Killer Mike”). Cribbing from the brief: "His recent album with rapper and producer El-P, Run the Jewels 2, was the most critically acclaimed record of the year in 2014. When he isn’t recording or performing, he can be found in television studios or university lecture halls talking about a wide range of issues, particularly those related to race and social justice. He performs as Killer Mike—but for this brief, in particular, it probably is worth noting that he has never actually killed anyone."

They summarize their argument this way:

This Court should grant certiorari because the Fifth Circuit’s decision effectively denies First Amendment protections to rap music, arguably the  most influential musical genre of the last 50 years. Using rap as his voice of protest, Taylor Bell recorded a song calling attention to serious problems facing students at his school.  

In its ruling, the Fifth Circuit focused on the violent rhetoric in Bell’s song. Although the lyrics cited in the ruling are commonplace in rap and reflect some of the genre’s most basic conventions, the Fifth Circuit ruled that they were “threatening, harassing, and intimidating.” As a result, the Government punished a young man for his art—and, more disturbing, for the musical genre by which he chose to express  himself.

“Under our Constitution, ‘esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.’” Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2733 (2011) (quoting United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 818 (2000)). Yet this did not apply to Taylor Bell.

. . . .

In attempting to censor Bell’s artistic expression, the school, and later the Fifth Circuit, essentially took aim at rap music, a sophisticated form of poetry that has served as an important vehicle for social commentary and political protest, particularly among young men and women of color. By taking Bell’s song lyrics literally rather than as forms of artistic expression, both the school and the Fifth Circuit essentially delegitimized rap as an art form that is entitled to full protection under the Constitution.

But rap most certainly is art. Like all poets, rappers privilege figurative language and employ a full range of literary devices. They also invent new words, invert the meanings of others, and lace their lyrics with dense slang and coded references that outsiders frequently do not understand. What’s more, rappers famously rely on exaggeration and hyperbole as they craft the larger-than-life characters that have entertained fans for decades.

Bell’s lyrics reflect these complex traditions. Told from the perspective of T-Bizzle—the fictional character created by Bell to narrate the song—PSK da Truth is intentionally provocative. But it draws on the conventions of mainstream rap, particularly the highly successful subgenre of “gangsta” rap.

As this brief discusses, the phrases deemed “threats” by the Fifth Circuit were, in actuality, wellworn rap lyrics borrowed—at times nearly verbatim—from some of music’s most successful and acclaimed performers.

Reading these violent lyrics as a type of autobiography ignores rap’s artistic conventions, thereby negating it as an art form, and perpetuates enduring stereotypes about the inherent criminality of young men of color, the primary producers of rap music. Studies establish that many people also harbor negative stereotypes about rap music that they do not have about other musical genres.

If our judicial system allows these stereotypes to go unchallenged, justice will continue to be elusive for those Americans most in need of a voice—a voice that rap music has given them.

Interestingly, I could see this brief as being one of the most helpful and informative the Court gets.  Just as judges know far too little of the technology that are asked to adjudicate in patent and other disputes, I suspect they know relatively little of music, at least rap.  As the brief makes clear, adjudicating this case on the face of the words spoken misses the whole point.  Get the full brief here:  Download Taylor-Bell-Amicus


December 22, 2015 in First Amendment | Permalink | Comments (0)

Tuesday, December 15, 2015

Did A School Skirt A Federal Injunction By Changing Its Live Nativity Scene To A Static One?

Federal courts commonly find that live nativity scenes on school grounds violate the First Amendment's Establishment Clause. Consistent with that precedent, the Northern District of Indiana issued a preliminary injunction earlier this month enjoining a Indiana high school from "portraying a nativity scene during a musical Christmas show. Last weekend, the high school in the case, Concord High School, presented its Christmas show with a static nativity scene, a move that the plaintiffs in the case say exploited a loophole in the order to ignore the court's ruling. On December 2, the district court granted the request of the Freedom From Religion Foundation (FFFR) to enjoin "any portrayal of a scene that is composed of live performers as part of [the school's] Christmas" Spectacular shows." The district court agreed with the FFFR that the nativity would "convey a message of endorsement of religion to a reasonable observer," thus failing the requirement of government neutrality towards religion established in Lemon v. Kurtzman, 403 U.S. 602 (1971). The district court rejected the school's arguments adding projected pictures with symbols of Chanukah and Kwanzaa and having the band and choir perform a tribute to each holiday to the Christmas show made the nativity scene simply an educational reference to Christianity rather than an endorsement. The district court noted that although the nativity was on stage for twelve minutes out of the ninety-minute show, (about thirteen percent of the show), the other religions were three to four minutes and had no visual performance as part of the musical. In the school's potential defense for using mannequins in the weekend show, the court's opinion had rejected FFFR's argument that a performed nativity scene would necessarily endorse religion without considering the context in which that performance would take place. The case is Freedom From Religion Found. v. Concord Cmty. Sch., No. 3:15-CV-463 JD, 2015 WL 7776561 (N.D. Ind. Dec. 2, 2015).

December 15, 2015 in Cases, First Amendment | Permalink | Comments (0)

Friday, November 20, 2015

Taylor Bell Is Taking His Rap Song to the Supreme Court: Will It Finally Address Off-Campus Speech?

Taylor Bell has filed his petition for certiorari with the Supreme Court.  Taylor Bell was a Mississippi high school student who had heard that coaches at his school were sexually harassing female students. He says the school administration had been told before but did nothing, so he wrote a rap song and performed it on youtube to bring attention to the issue. He named coaches, recounted allegations, and made provocative allusions.  Before performing the song, he offered this preface:

A lot of people been asking me lately you know what was my
reasoning behind creating P.S. Koaches. It's . . . something that's
been going on . . . for a long time [] that I just felt like I needed to
address. I'm an artist . . . I speak real life experience. . . . The way
I look at it, one day, I'm going to have a child. If something like
this was going on with my child . . . it'd be 4:30. . . . That's just
how it is . . .

For his deed, he was suspended and sent to alternative school.  According to the school district, "Taylor Bell did threaten, harass and intimidate school employees in violation of School Board policy and Mississippi State Law."  Taylor won his case before a three judge panel of the Fifth Circuit, but it was reversed by the en banc panel.  His petition to the Supreme Court is sure to draw a close look and will be supported by numerous amici.

Here is his summary of the case:

This case presents a First Amendment question of the utmost importance that has vexed school officials and courts across the country: whether this Court’s landmark decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), applies to students’ off-campus speech.  This question arises with startling frequency in an age when students communicate primarily through online social media such as Facebook, Instagram, and Twitter.  Only this Court can provide the guidance that students, parents, teachers, school administrators, and lower courts desperately need.

In a deeply fractured decision, the en banc Fifth Circuit held that the First Amendment allowed a Mississippi public high school to censor an 18-year-old senior’s entirely off-campus speech calling attention to sexual misconduct by school officials.  Petitioner Taylor Bell composed, recorded, and posted to the  Internet a rap song reporting that two of his school’s male teachers had sexually harassed and assaulted female students.  Bell wrote the song over winter break, recorded the song at a professional studio, and uploaded the song to Facebook and YouTube from his personal computer at home.  No one even heard the song at school, except one of the accused teachers at his own initiative.

Continue reading

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