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."
Tuesday, December 9, 2014
Last week, the Department of Public Instruction "highly recommend[ed]" that social studies teachers use the curriculum it is paying The Bill of Rights Institute, a purportedly conservative group, to develop. The Institute receives grants from the Koch brothers, who are extremely politically active and conservative, and their foundations. It is also worth noting that the state contract to develop materials was sole-sourced to the Institute. The state's explanation was that the Institute was the only one qualified to develop a founding principles curriculum. Harry Watson, a history professor at UNC-Chapel Hill, said "I think the Koch brothers have demonstrated they have a strong and active partisan interest in politics,” he said. “I don’t think the public school curriculum should be written from a partisan perspective.”
The Institute may very well produce a balanced curriculum. In that event, the sole sourcing of the materials may be the only question, but if the final curriculum is intentionally skewed, it will implicate the same legal issues I discussed last week in regard to Texas's recent textbook selections. North Carolina teachers, however, still question why the Department of Public Instruction is dictating specific curriculum in social studies because it does not in other areas. Moreover, local teachers indicate that they are already using the founding documents and discussing their principles in class. Thus, the Institute's curriculum will either be redundant of their current teaching practices or, they fear, impose a narrow perspective of the founding principles.
Friday, December 5, 2014
Given the size of its student population, the Texas Board of Education's decisions about which books to approve and purchase have an enormous effect on the overall market. The Board's deliberations seem to get more and more political each year. Last year, I posted on the Board's ongoing saga to select biology books that included creationism, and I referenced its 2010 decision to adopt history and economics books with a decidedly conservative slant. Late last month, they were at it again.
According to local reports, the state has approved new history textbooks with even more revisionist history in them. The Texas Freedom Network indicates, for instance, that "the new textbooks also include passages that suggest Moses influenced the writing of the Constitution and that the roots of democracy can be found in the Old Testament. Scholars from across the country have said such claims are inaccurate and mislead students about the historical record."
The Supreme Court has recognized that the state and its schools have the right to promote and inculcate values and good citizenship, but in Island Tree School District Board of Education v. Pico, 457 U.S. 853 (1982) and West Virginia v. Barnette, 319 U.S. 624 (1943), the Court emphasized the authority has its limits. The state cannot forcefully indoctrinate students or intentionally subvert access to information. Deciding which side of the line educators' actions falls on can be difficult, but in Loewen v. Turnipseed, 488 F. Supp. 1138 (N.D. Miss. 1980), the district court confronted a situation analogous to the ongoing saga in Texas.
In Loewen, the state had refused to include Mississippi: Conflict and Change--which told the less than laudatory history of discrimination in Mississippi--on the state's list of approved history books, but had included another book that, according to plaintiffs, was a "symbol of resistance to integration in Mississippi schools." The court did not strike the latter book, but did find the exclusion of the first was unconstitutional based on the aforementioned cases. Key in Loewen were procedural anomalies and problematic comments on the record by the state in regard to Mississippi: Conflict and Change.
Monday, December 1, 2014
Over the past year, there has been a tremendous amount of discussion on this blog (e.g., here, here, here, and here) and elsewhere about how schools prosecute and prevent rape, as well as deal with its aftermath. The law applies to all schools that receive federal funds, but the conversation has focused almost exclusively on colleges and universities. Last week, students in Oklahoma revealed how the problem can play out in public high schools.
Three students in Norman Public Schools accused a male classmate of sexually assaulting them. The school acted swiftly to remove the male student from school. The students' complaints, however, are in regard to the environment that developed afterward. They say that the alleged assailant's friends have now begun bullying them and it has not stopped. As a result, they withdrew from Norman High School. Now hundreds of other students have come to the girls defense, stagging a walkout protest last week. Whether there was a hostile environment and the school failed to adequately respond remains to be seen, but these students, like those concerned with curriculum issues in Colorado, have certainly found a way to shine a spotlight on the issue.
Thursday, November 13, 2014
In Montgomery County, Maryland, Muslim community leaders requested that the school district close school on the holy day of Eid al-Adha. Their rationale was that school is closed on major Christian and Jewish holidays and that it would be equitable to close on the Muslim holiday as well. While Muslim students' absences on religious holidays are excused, they still miss important classroom time and their families wanted to avoid this. Thus, community leaders argued the only fair thing to do would be to close on Eid al-Adha as well.
Wednesday, November 5, 2014
Two new articles of note are available on westlaw now. They are about two entirely different trends, but suggest a huge irony when read together.
Janet R. Decker, Facebook Phobia! The Misguided Proliferation of Restrictive Social Networking Policies For School Employees, 9 NW J. L. & Soc. Pol'y 163 (2014). The abstract states:
Employers have dismissed and disciplined teachers and other school employees for posting controversial material and engaging in inappropriate employee-student relationships over social networking. In response, schools have enacted policies that greatly restrict educators' social networking. This Article examines whether restrictive social networking policies are necessary. After analyzing the relevant state legislation, statewide guidance, district policies, and case law, this article argues that restrictive policies are unwarranted and misguided. School districts have prevailed in the vast majority of the cases because they already have the legal authority to discipline employees under existing law. This Article also recommends how policymakers and school leaders could respond to school employees' social networking more effectively.
Brandi LaBanc, Kerry Melear, and Brian Hemphill's new article, The Debate over Campus-Based Gun Control Legislation, 40 J.C. & U.L. 397 (2014), begins with an overview of mass and public shootings that have led to the increase in gun control legislation. Because the Second Amendment is often implicated by these debates, the authors provide an outline of the amendment and related Supreme Court decisions. The authors then focus on "state firearm laws that resonate within higher education, including state laws permitting concealed weapons on campus and other gun-related legislation." Specifically, in 2013 four states passed gun control laws affecting higher institutions (Alaska, Arkansas, Texas, and New York), and all four laws are briefly discussed. The evaluates the arguments for both allowing and prohibiting firearms on college campuses. Finally, the authors conclude with a best practices discussion.
Tuesday, October 28, 2014
Raul R. Calvoz, Bradley W. Davis, and Mark A. Gooden's new article, Constitutional Implications of School Punishment for Cyber Bullying, 2014 Cardozo L. Rev. de novo 104, is available. It addresses the constitutional and legal challenges that may stand in the way of administrators and legislators' attempts to combat cyber bullying. First, since the acts most frequently associated with cyber bullying involve written words, a student's First Amendment right to free speech is implicated. Second, due to the mobile nature of technology, a student's actions outside of school grounds, even if they have an incidental impact on school grounds, raise the question of whether schools have jurisdiction to discipline the students.
The authors frame their analysis within the context of the substantial disruption test from Tinker v. Des Moines. In Tinker, the Supreme Court held that school administrators may regulate student speech if the regulation aims at preventing a foreseeable: (1) material or substantial disruption in the school environment; or (2) invasion of the rights of others. The authors reason that school administrators may, without violating students' constitutional rights, regulate and prohibit any bullying (including cyber bulling) which falls into either of those two categories. However, the jurisdictional question complicates matters.
Tuesday, September 30, 2014
A new student comment by Talon Hurst, Give Me Your Password: The Intrusive Social Media Policies in Our Schools, 22 CommLaw Conspectus 196 (2014), discusses social media policies "that allow school officials to request or demand students to consent to their social media accounts being accessed or monitored[.]" The author argues that these policies violate students' First and Fourth Amendment rights, and calls for judicial review of their constitutionality. Hurst emphasizes that these kinds of social media policies are not only a concern in primary and secondary schools, but also growing in prevalence at a number of colleges and universities, especially in regards to student athletes. Who knew colleges and universities were so interested in their students?
Hurst points to school officials at the University of North Carolina, who "force their student-athletes to consent to the monitoring of their social network accounts by signing a social media policy[,]" which states that "'[e]ach team must identify at least one coach or administrator who is responsible for having access to and regularly monitoring the content of team members' social networking sites and posting.'"
Friday, September 26, 2014
High school students protesting proposed changes to the history curriculum in Denver area schools have gained national attention in recent days. The pertinent portion of the proposal before the school board states:
Materials should promote citizenship, patriotism, essentials and benefits of the free enterprise system, respect for authority and respect for individual rights. Materials should not encourage or condone civil disorder, social strife or disregard of the law. Instructional materials should present positive aspects of the United States and its heritage. Content pertaining to political and social movements in history should present balanced and factual treatment of the positions.
The number of students protesting swelled to seven hundred to one thousand on Wednesday. As an educator, I am heartened to see students taking such a serious interest in their education, particularly history, and making use of the First Amendment rights. As a law professor, I am not sure their position has legal grounding. Rather, their claim, if they have one, is of policy. I agree with their substantive position--that the school should not censor the truth or bend the historical narrative--but I am not sure the proposed policy crosses the line of permissible conduct.
Monday, September 22, 2014
Shortly after the shooting of Michael Brown in Ferguson, Edwardsville, Illinois Superintendent Ed Hightower told his teachers to not bring up or discuss the situation in Ferguson and, if students brought it up, to change the subject. His rationale, “this situation in Ferguson-Florissant has become a situation whereby there are so many facts that are unknown.” The initial impetus was apparently complaints by parents about teachers sharing their opinions on Ferguson. That motivation would have obviously raised First Amendment red flags. In a subsequent statement, he tried to fit his directive closer to the law, stating:
We felt it was important to take the time to calm a potential situation at the high school and to prepare administrators and teachers to approach this critical issue in an objective, fact-based manner. Everyone has an opinion — the sharing of which can be polarizing. Far too many facts remain unknown, and without these facts, none of us is in the best position to moderate between opposing views.
Friday, September 19, 2014
Those who seek to include more religion in school often perceive the ACLU as waging war on religion. A recent story out of Louisiana demonstrates that perception is wrong. The ACLU distinguishes between official school acts that endorse religion or subtly coerce non-believers into religious activity and those school acts that interfere with students's free exercise of religion.
At the beginning of the school year, South Plaquemines High School in Louisiana suspended a Rastafarian boy school and forbade him from returning until he cut his dreadlocks. They cited him with violating the school's dress code, which prohibits hair below the collar. The next week he returned to school with his hair pinned up, but told him he was still in violation of the dress code.
Rastafarians' religious beliefs, although some charge it is just a way of life, forbid them from cutting their hair, and the ACLU of Lousisiana has stepped in to support the boy for this reason. “The wearing of dreadlocks for (the student) is akin to the wearing of a religious icon by another student,” the ACLU said in a letter. “We would object if the school were to tell a Christian student they could not wear a cross or if it were to permit the wearing of religious icons of one faith and prohibited those of another faith. In discriminating against (the student’s) religious beliefs, the school is expressing a preference for certain religions, which is unacceptable.” The ACLU charges that the district's actions violate the First Amendment and Louisiana’s Preservation of Religious Freedom Act.
Tuesday, September 9, 2014
Today, the Judiciary Committee in the U.S. House of Representatives is holding a hearing on the need for a constitutional amendment to protect parental rights. Of concern to proponents are state incursions on the ability of parents to direct the education and medical decisions of their children. Such an amendment will go nowhere fast, but the testimony and discussion should be of interest to scholars and advocates. The committee will hear testimony from Michael Farris, Chairman of the Home School Legal Defense Association; Professor Catherine Ross, George Washington University Law School; and Wendy Wright, Vice President of the Center for Family and Human Rights Institute. Details on the hearing and links to their written testimony can be found here.
Tuesday, September 2, 2014
New Hampshire Supreme Court Reinstates Tuition Tax Credit Program But Avoids Law’s Constitutionality
A unanimous New Hampshire Supreme Court rejected a challenge last week to the state’s tuition tax credit law but side-stepped the issue of its constitutionality. The state supreme court dismissed Duncan v. State of New Hampshire on standing grounds, holding that a recent amendment to the law allowing taxpayer standing was insufficient to confer standing under the state constitution. While New Hampshire’s constitution does not have a corresponding provision to the federal constitution’s Article III standing clause, the court interpreted a provision authorizing the supreme court to rule upon “upon important questions of law and upon solemn occasions” to prohibit issuing advisory opinions to private persons. The N.H. Supreme Court’s ruling reinstates a law allowing businesses to receive an 85 percent tax credit when they donate to private scholarship organizations for students who attend private school, homeschool or an out-of-district public school. A lower court ruled last year that the tax credit program unconstitutionally sent public tax dollars to private religious schools. Right now, the tax credit program is so small that it may be difficult to demonstrate harm in a future legal challenge, Bill Duncan, state Board of Education member and lead plaintiff, told NPR. The state’s first scholarship program raised $250,000 dollars for scholarships in 2013, but $50,000 this year, albeit in the shadow of the lower-court ruling. The state program would allow up to to $5.1 million in tax credits to be claimed this year. Read Duncan v. State of New Hampshire here.
Thursday, August 14, 2014
In October 2012, a controversy arose at Kountze High School in Kountze, Texas, over the constitutionality of permitting, and then banning, the high school's cheerleaders from displaying religious messages on the banners that the football team runs through at games. Initially, the Freedom From Religion Foundation challenged the banners as school sponsored speech. The school district agreed and prohibited the banners. The cheerleaders then sued, claiming that the school was infringing on their constitutional rights by limiting their speech. A state trial court agreed. After an intermediate court declared the case moot, it is now on petition to the state supreme court.
The case is particularly fascinating for three reasons. First, it implicates the fine line between religious endorsement and religious accommodation that often consumes so much time in education law classes. Second, it raises unique and difficult circumstances for assessing school sponsored speech. Thinking of my own experiences two decades ago, it seemed cheerleaders were on their own in artistically expressing themselves through banners. I recall them sitting on the gym room floor acting freely. It is hard to imagine that a school could permissibly engage in content based or religious based limitation of that expression.
Tuesday, July 29, 2014
The Supreme Court in Engel v. Vitale in 1962 held that prayer led by or encouraged by school officials in public schools is unconstitutional. Nonetheless, the practice continues in a number of public schools today. Recently, for example, a parent complained that a teacher had led prayer at a school banquet in Vigo County, Wisconsin. It took a year and lawsuit by a local foundation to get the district to agree to eliminate teacher led prayer.
Many school districts have appeared eager, for some time, to reintroduce official prayer in some aspect of their schools. The Supreme Court’s recent decision in Town of Greece v. Galloway may have further galvanized them. In Town of Greece, the Court ruled in favor of allowing sectarian prayers at public town meetings. Now, school districts like Pickens County, South Carolina are taking the Supreme Court’s decision a step further, reading it as a green-light to reinstate sectarian prayer in school board meetings as well.
Monday, July 21, 2014
An Arizona charter school, Heritage Academy, is purportedly using two of Cleon Skousen’s books, “The 5,000 Year Leap” and “The Making of America,” in its high school history class. The books depict American slavery in a racist and sympathetic light. Skousen, for instance, includes an essay arguing that “if [African-American children] ran naked it was generally from choice, and when the white boys had to put on shoes and go away to school they were likely to envy the freedom of their colored playmates.” Professor Garret Epps, University of Baltimore School of Law, explains that “parts of [Skousen's] major textbook … present a systematically racist view of the Civil War” with a “long description of slavery in the book” arguing that slavery was “beneficial to African-Americans and that Southern racism was caused by the ‘intrusion’ of Northern abolitionists and advocates of equality for the freed slaves.” The school's founder and principal defends the use of the books, stating that "Our purpose is not to convert students to different religious views. It is to show them that religion influenced what the Founders did.”
Rushing to judgment in book cases is all too easy, and that is how school boards and state departments of education find themselves in lawsuits. All books can have value in the classroom. What matters is not the views the books espouse, but how those views are presented to students. As a litany of establishment clause cases has shown us, the Ten Commandments and the Bible can be used in school, if used in the proper context. The problem is that the proper context is most often lacking.
Thursday, July 17, 2014
The U.S. District Court for the Middle District of Florida dismissed a suit against the Orange County School Board (OCSB) earlier this month, finding that the claim that the Board prohibited distribution of anti-religion materials was moot. An advocacy group, the Freedom From Religion Foundation, filed the federal complaint after the OCSB did not allow the group to hand out flyers in schools that criticized various religions. The Foundation charged that the OCSB's restriction was viewpoint discrimination because the OCSB allowed a group called the World Changers of Florida to distribute copies of the Bible. The OCSB, in explaining the different treatment, cited a consent decree from another Florida county school board to allow World Changers to distribute Bibles on school grounds (none of the parties in the Orange County case were parties to the prior consent decree). The Orange County case was mooted, the Middle District found, because the OCSB stated "that each of the materials plaintiffs sought to distribute will be unconditionally allowed" and thus the prohibition that gave rise to complaint was unlikely to reoccur. Read the district court's decision in Freedom From Religion Foundation v. Orange County School Board at Courthouse News Service here.
Wednesday, July 9, 2014
The New York Court of Appeals recently struck down a local cyberbullying ordinance enacted by the Albany County Legislature on First Amendment overbreadth grounds. In 2010, the Albany County Legislature adopted a new misdemeanor offense — cyberbullying — defined as "any act of communicating . . . by mechanical or electronic means . . . with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person." A high school student was prosecuted under the statute after he anonymously posted photographs of his classmates and other minors with sexual captions attached to the pictures. The student pleaded guilty to one count of cyberbullying but reserved his right to raise his constitutional arguments on appeal. On appeal, the Court noted that the statute "create[d] a criminal prohibition of alarming breadth" that "criminalize[d] a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult." The county government conceeded on appeal that the ordinance was overbroad and thus limited protected free speech, but argued that the law could be saved because certain sections passed strict scrutiny review, namely the prohibitions against disseminating sexually explicit photographs, private or personal sexual information, and false sexual information with no legitimate public, personal or private purpose. Those sections were justified, the County argued, by a compelling government interest and were narrowly drawn to serve that interest. The NY Court of Appeals declined to save the non-infringing sections of the ordinance, finding that the law's text "envelops far more than acts of cyberbullying against children by criminalizing a variety of constitutionally-protected modes of expression" and that the Court could not rewrite the law without encroaching on legislative power and modifying the legislature's original intent. Read the Court's opinion in People v. Marquan M. here and Eugene Volokh's comments on the case here.
Thursday, July 3, 2014
The Eleventh Circuit Court of Appeals recently held that a school employee’s speech, made while on leave from his school district serving as the president of the Georgia Association of Educators (“GAE”), was made in that role rather than as a school district employee. The circuit court thus overturned on First Amendment grounds a lower court's summary judgment ruling for the school district. The case arose when Richard Hubbard, who had been an assistant principal employed by the Clayton County (Georgia) School District, was elected to be president of the GAE. Hubbard was retained as a district employee to preserve his retirement status and benefits, but was considered “on-loan” to the GAE, which reimbursed Hubbard’s salary and benefits to the district. During his tenure as GAE president, the Clayton County School District had an accreditation crisis. Hubbard commented to the media that if certain allegations made against the Clayton County School District about the accreditation investigation were true, the school board should step down. Following those comments, the Clayton County School District voted to discontinue any employee leave that was not specifically allowed by Board Policy, including Hubbard’s “on-loan” arrangement. Hubbard resigned as a school employee and sued the district in federal court. A federal district court found in favor of the school district on summary judgment, deciding that Hubbard was speaking pursuant to his official duties for the school district and thus had no First Amendment protection under Garcetti v. Ceballos. The 11th Circuit disagreed, finding that Hubbard’s speech was made in his capacity as president of GAE, and thus his speech did not fall under Garcetti. The 11th Circuit noted that Hubbard was only technically an employee of the school district since he had no employee assignments or responsibilities to the district while “on-loan” to GAE. Read Hubbard v. Clayton County School District here.