Friday, July 3, 2015
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.
I used a similar fact pattern to test the fundamental right to control the upbringing of one's children and free exercise of religion in my constitutional law class this spring. The first question under either is whether the law substantially impairs the constitutional right. For most families the answer would be no (although it is possible it might substantially impair the rights of some). Even assuming a substantial impairment, courts have moved away from applying strict scrutiny to the impairment. Courts have tended to apply rational basis review to upbringing claims. The only way to get to strict scrutiny is to show that the upbringing claim also intersects with religious beliefs. But with religious beliefs, the court has also scaled back the ability to get to strict scrutiny.
In Oregon v. Smith, the Court held that generally applicable laws that infringe on religion are only subject to rational basis. In other words, so long as the law is not directed at religion it is unlikely to trigger strict scrutiny. Here, the law is not aimed at religion. One might, however, argue that the law is not generally applicable because it retains an exemption for medical reasons. The rationale here is that if the state is already granting exemptions to some groups, the First Amendment might also require that it also grant religious exemptions while is at it. Otherwise, the government is disfavoring religious groups in comparison to others. The precedent on this point is not extensive, but I would still tend to see this as generally applicable law. A medical exemption in a medical vaccination statute does not appear to be an instance of a state granting an exemption to one group that it denies to religion. Rather, the statute attempts to safely apply the law to all students. Per this reasoning, California's law would be subject to rational basis, which it would easily pass.
Wednesday, July 1, 2015
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.
Thursday, June 25, 2015
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."
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).
Tuesday, May 26, 2015
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.
Thursday, May 7, 2015
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.
Monday, April 27, 2015
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:
Tuesday, April 14, 2015
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.
Thursday, April 9, 2015
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.
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:
Thursday, April 2, 2015
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.
Monday, March 30, 2015
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.
Friday, March 13, 2015
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.
Wednesday, March 4, 2015
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.
Plaintiffs in Swainsboro Primary School in Emanuel County, Georgia, have filed suit against the district, alleging that daily prayers are held in the classrooms. They add that teachers pressured their children to participate and even punished them for not doing so. "[O]ne child was proselytized and the other felt so uncomfortable at school that [the] parents began home schooling the child." The parents parents complained, but allege the matters only worsened afterward. These are rather incredible claims, but if even a portion of them are true, they clearly represent First Amendment violations. School officials have not responded to requests for comment.
See here for more on the Swainsboro story, as well as other school prayer disputes currently under review.
Thursday, February 12, 2015
New Jersey State Court Finds That Pledge of Allegiance Statute Does Not Violate the State Constitution
A New Jersey Superior Court found this month that a state statute requiring schoolchildren to recite the pledge of allegiance (and its "under God" phrase) did not violate the state constitution's equal protection and establishment clauses. Given that the Massachusetts Supreme Court decided a similar case last May (Jane Doe v. Acton-Boxborough Regional School District), the more recent ruling adds to the cases finding that the pledge of allegiance ceremonies in schools are constitutionally permissible. In the February 2015 case, American Humanist Ass’n v. Matawan-Aberdeen Reg. Sch. Dist., the lead plaintiffs were parents of schoolchildren who challenged New Jersey's pledge statute that required schools to include a salute to the U.S. flag and recitation of the pledge of allegiance each day. The plaintiffs, along with the American Humanist Association, alleged that children who do not participate are nevertheless having the pledge's religious language imposed on them and could suffer exclusion if they choose not to participate. The state court found that the statute did not implicate children's religious freedom because participation in the pledge is voluntary. The court also found that expunging the words "under God" from the pledge was unnecessary because the purpose of public schools is to foster ideas without requiring students to adhere to them. The court rejected the equal protection claim, finding no proof that the plaintiffs' children were discriminated against because of their beliefs. Read American Humanist Ass’n v. Matawan-Aberdeen Reg. Sch. Dist., No. 1317-14 (N.J. Super. Ct. Feb. 4, 2015) here.
Wednesday, February 4, 2015
In 2012, Indiana House Speaker Brian Bosma shelved a Senate bill "that would have allowed public schools to teach creationism alongside evolution in science classes." Specifically, public schools would have been permitted to teach creationism as long as they taught it alongside "origin-of-life theories from multiple religions: Christianity, Judaism, Islam, Hinduism, Buddhism and Scientology." The bill passed the Indiana Senate, but Representative Bosma squashed the bill upon its arrival in the House, recognizing the bill as a "lawsuit waiting to happen."
Now, the Senate is pushing the issue again in Senate Bill 562. Similar to its predecessor, this proposal would protect teachers from disciplinary action for exploring alternative theories to evolution in class. This new bill, however, cleverly frames this issue as freeing teachers to help
students to understand, analyze, critique, and review in an objective manner the scientific strengths and weaknesses of existing conclusions and theories being presented in a course being taught by the teacher.
The bill then adds limiting language, stating:
This section protects only the teaching of scientific information, and may not be construed to promote: (1) any religious or nonreligious doctrine; (2) discrimination for or against a particular set of religious beliefs or nonbeliefs; or (3) discrimination for or against religion or nonreligion.
Thursday, January 29, 2015
Last spring, Middlebury Community Schools in Indiana terminated Kevin Pack, a probationary teacher. It cited immorality, insubordination, incompetence, neglect of duty, and other just cause as the basis. Pack fired back, arguing that he was terminated because he is an atheist and had objected to the principal's comments and actions in regard to religion. For instance, Pack indicates that the principal had sent an email to the entire staff, saying “May God grant you [safe] travel,” and “Please get on your knees and pray for good weather days during finals.” At one point, Pack lodged a formal religious harassment complaint against the principal.
The district later withdrew the charge of incompetence, but remained steadfast in allegations regarding Pack's poor teaching, his intermittent failure to discharge certain duties, and his inappropriate language and choice of material in the classroom. I, of course, have no basis for knowing who is correct here, but the case does raise important questions of mixed motives. First, assuming that Pack is a poor teacher, would Pack's shortcomings have generated his termination had he never expressed his religious objections? In other words, has the district dismissed other teachers with similar performance? Second, was the manner in which he expressed his religious objections, rather than the objections themselves, the basis for his termination? It is possible that he has very poor interpersonal skills and did not work well with other or follow the rules.
His employment situation aside, did the principal's behavior ever rise to the level of an Establishment Clause violation? Pack has not raised this last point, but has filed an employment discrimination suit against the district.
Monday, January 12, 2015
South Carolina legislators have put forth two bills to require gun safety and Second Amendment curriculum in schools. Putting aside the fact that South Carolina's school system was declared constitutionally inadequate this winter, these bills are hard to appreciate. First, while it is important for state legislatures' to lead on education issues, rather than devolving all discretion to local school districts, anytime any one toys with the curriculum for political purposes it creates educational and legal problems. See here, here, here, and here. As I teach educational law each year, I often remind my students that we see so many religion and speech cases in education because adults cannot seem to help themselves from using education as their playground.
Second, one of the sponsors of the bill said he was prompted to write it after learning of a local student who was suspended and arrested over a story he wrote for class about shooting a dinosaur. This, says the legislature, was a travesty under both the First and Second Amendments. He is probably correct about the former. (See here for my earlier post on the suspension.) If there was any reason to believe that weapons curriculum might mitigate the use of zero tolerance policies against students, the bill might be innovative. But the more obvious solution would seem to be to address zero tolerance policies themselves or train teachers on students' First Amendment rights.
Thursday, December 18, 2014
Taylor Bell, a high school student in Mississippi, had heard that some of the male coaches at his school had been sexually harassing female students. Taylor said he did not bring the issue to the administration because it had been warned before and done nothing. Taylor decided to take matters into his own hands. He wrote a rap song about the issue--which I will not reproduce here due to its length--performed it, and posted it to youtube. The song named coaches, recounted allegations, and made a number of provocative allusions. In a monologue preceding the actual rap, he explained his motivations:
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 . . .
He later added that he wanted people, including school officials, to "more clearly understand exactly what [he] was saying" in the song. The next day disciplinary proceedings commenced against him at school. He was suspended and sent to alternative school. According to the district, "Taylor Bell did threaten, harass and intimidate school employees in violation of School Board policy and Mississippi State Law."