Thursday, May 7, 2015

Student's Facebook Post that Teacher "Needs to Be Shot" Ruled Protected Speech

The U.S. District Court for the District of Oregon recently ruled that a school violated a student's free speech rights when it suspended him for posting on Facebook post that his teacher "needs to be shot." The eighth grade student was angry because his parents grounded him after he got a C in her class. The court wrote that the off-campus post post was unlikely to "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the required showing under Tinker v. Des Moines Indep. Cmty. Sch. Dist. The student's post did not announce a specific plan, and the school's choice of discipline, a three-day in school suspension, further convinced the district court that school officials did not take the comments seriously. Although the teacher was apprehensive about the student returning to school, she accepted the school's decision to let the student return. The district court distinguished a 2013 Ninth Circuit case, Wynar v. Douglas Co. Sch. Dist., which upheld a school suspension of a student for his threatening social media post because he detailed plans that targeted specific students. Read the district court's opinion in Burge v. Colton School Dist. 53 here.

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

Monday, April 27, 2015

OCR Reminds Districts and Universities to Designate Title IX Coordinators

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

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

Tuesday, April 14, 2015

Student Refused Services for Failing to Pledge Allegiance

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

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

Thursday, April 9, 2015

Normalizing Religion and Race in School (in bad ways)

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

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

Tuesday, April 7, 2015

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

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

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

Thursday, April 2, 2015

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

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

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

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

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

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

Monday, March 30, 2015

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

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

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

March 30, 2015 in First Amendment | Permalink | Comments (0)

Friday, March 13, 2015

ACLU Sues on Behalf of Teacher Fired for Vegan Advocacy Facebook Posts

The ACLU of Ohio Foundation, Inc., is litigating the case of an Ohio teacher who was terminated after posting comments criticizing dairy farming on his personal social media page. In August 2014, a Title I tutoring teacher Keith Allison showed up for another year of work at the Green Local School District’s elementary school, which is located in an area where dairy farmers make up a significant part of the local tax base. Allison was called into a meeting with the school's principal, who questioned him about a Facebook post he had made over the summer, criticizing the treatment of dairy cows near his home (with pictures that Allison took of baby cows in pens) and encouraging readers to switch to plant-based milks. The principal scolded Allison for his comments, following up with an  email which reportedly stated that "our teachers to really consider the whole community when doing these sort of things [making statements on social media], especially when our biggest tax payers are dairy farmers.” Allison was told that his pay rate would be retroactively lowered for the hours he had already worked, that he would be paid at the rate of a substitute teacher instead of as a Title I teacher, and was eventually terminated. The ACLU, representing Allison, filed suit last week, challenging Allison's termination on First Amendment grounds and stating that state and school officials had "no valid interest that would justify punishing or censoring Allison for his commentary on dairy farming."  A copy of the complaint is available at cleveland.com here.

March 13, 2015 in Cases, First Amendment | Permalink | Comments (0)

Wednesday, March 4, 2015

Fifth Circuit Grants Rehearing En Banc In Off-Campus Student Speech Case

The Fifth Circuit has granted rehearing en banc to review a panel's decision that a school's disciplining a student for off campus rights violated his First Amendment rights. In Bell v. Itawamba Cnty. Sch. Bd., a Fifth Circuit panel found that the school improperly disciplined a public high school student after he posted a rap song on the Internet criticizing two named male athletic coaches and accusing them of sexually harassing female students. The rap song was  composed and posted off campus during a Christmas break. Upon learning about the song, the student was suspended by his high school and was transferred to an alternative school for the remainder of the grading period. Assuming arguendo that the school board could apply a defense under Tinker v. Des Moines Independent Community School District to off-campus speech, the panel found that the school failed to show that the song substantially disrupted the school's work or discipline process or that school officials reasonably could have forecasted such a disruption. The panel further concluded that the song contained no credible threat of violence that would rise to the level of a “true threat.” The panel directed the district court to award nominal damages and to order  the school board to expunge all references to the incident from the student's school records. The  panel decision is Bell v. Itawamba Cnty. Sch. Bd., 774 F.3d 280, 282 (5th Cir. 2014), reh'g en banc granted (Feb. 19, 2015); the Fifth Circuit's rehearing order is here.

March 4, 2015 in Cases, First Amendment | Permalink | Comments (0)

Daily Prayer in the Classroom?

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.

March 4, 2015 in First Amendment | Permalink | Comments (0)

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.

February 12, 2015 in Cases, First Amendment | Permalink | Comments (0)

Wednesday, February 4, 2015

Indiana Legislature Still Pushing for Creationism, or Is It?

​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.

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February 4, 2015 in First Amendment | Permalink | Comments (0)

Thursday, January 29, 2015

Teacher Alleges He Was Fired Because He Is an Atheist: The Problem of Mixed Motives

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.

The district's final decision and charges of dismissal are here.  Pack's response through the union is here.

January 29, 2015 in First Amendment, Teachers | Permalink | Comments (0)

Monday, January 12, 2015

From Zero Tolerance to Weapons Instruction

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.

January 12, 2015 in Discipline, First Amendment | Permalink | Comments (0)

Thursday, December 18, 2014

Taylor Bell Knows How to Get His Message Out and The Fifth Circuit Agrees

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."

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December 18, 2014 in First Amendment | Permalink | Comments (0)

Tuesday, December 9, 2014

North Carolina to Source History Lessons from Foundation Funded by Koch Brothers

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.

More here.

December 9, 2014 in First Amendment | Permalink | Comments (0)

Friday, December 5, 2014

Texas Textbook War Marches On

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.  

 

December 5, 2014 in First Amendment | Permalink | Comments (0)

Monday, December 1, 2014

The Aftermath of Rape Moves to High School

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.

December 1, 2014 in First Amendment, Gender | Permalink | Comments (0)

Thursday, November 13, 2014

Changes in Holiday Calendar Create Controversy in Maryland, But Board Probably Got It Right

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.  

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November 13, 2014 in First Amendment | Permalink | Comments (0)

Wednesday, November 5, 2014

Increasing Restrictions on Social Media While Reducing Restrictions on Guns

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. 

November 5, 2014 in Discipline, First Amendment | Permalink | Comments (0)