Tuesday, April 19, 2016
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.
Monday, March 21, 2016
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.
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.
Wednesday, March 9, 2016
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.
Tuesday, March 1, 2016
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).
Monday, February 29, 2016
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."
Monday, February 22, 2016
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.
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 (
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.
Monday, February 1, 2016
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.
Tuesday, January 26, 2016
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.
Monday, January 11, 2016
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.
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
Tuesday, December 15, 2015
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).
Friday, November 20, 2015
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.
Thursday, November 19, 2015
Addressing a first-year class at Georgetown University Law Center a few days ago, United States Supreme Court Justice Antonin Scalia shared his view that there is no fundamental Constitutional right of a parent to direct the education and upbringing of their children. This is not to say, however, that Supreme Court precedent does not protect such a right. In 1925 in Pierce v. Society of Sisters, the Court struck down an Oregon law requiring all children to attend public school. The Court indicated that, in not affording a parent the option of sending their child to a private school, the law “unreasonably interfere[ed] with liberty of parents and guardians to direct the upbringing and education of children under their control.”
Scalia’s rejection of such a right is based on his opposition to the use of substantive due process to enumerate rights. Because a parental right is “simply not in the Constitution,” Scalia says he “will not enforce it from the bench.” Consistent with his comments, Scalia dissented in Troxel v. Granville, a case dealing with third party visitation rights with children. There, Scalia reasoned that although the parental right to control the upbringing of their child is an inalienable right stated in the Declaration of Independence, the Constitution does not grant judges the right to rule on state laws that may interfere with a parental right.
Scalia’s reasoning is tied up in anti-Lochner reasoning. As some may painfully remember, the Lochner Era refers to Supreme Court decisions between 1897 and 1937 in which the Court aggressively curtailed government regulation of private industry, including the minimum wage, labor rights, and workplace safety. The Court struck down this regulation by reasoning that individuals have a fundamental liberty interest to engage in contract and that these regulations interfered with the right—i.e. an individual should be able to contract to work under any conditions that he is willing to accept. Pierce and a few other parental cases were decided during the Lochner Era. These cases were predicated on the notion that the government was interfering with the parents’ right to enter into a contract for education services.
This fundamental right to contract worked any number of mischiefs and was later repudiated, leaving cases like Pierce in doubt. In fact, much of modern jurisprudence is premised on not ever going back to the type of judicial activism and inconsistency we say during the Lochner Era. In that respect, Justice Scalia may be on firm ground. But the theory of the right to control the upbringing of one’s children has since been integrated into First Amendment doctrine of freedom of religion and speech. Pierce, for instance, could have just as easily been decided on freedom of religion grounds as freedom of contract. Freedom of religion is, of course, explicitly in the Constitution. I am a little surprised (or not) that Scalia would dismiss that reality.
Unfortunately, while incorporated into religion and speech, parental rights in education have grown increasingly complex in recent years. Catherine Ross offers a nice overview at 18 Wm. & Mary Bill of Rts. J. 991 (2010).
Monday, November 9, 2015
A new report by the Council on American-Islamic Relations (CAIR) finds that Muslim students experience high rates of bullying and discrimination in California's public schools. Among other things, the report calls on Congress to amend Title VI to include a prohibition on religious discrimination. While the CAIR is correct that Title VI does not prohibit religious discrimination, it is not always clear whether the discrimination against Muslim students is ethnic or religious discrimination. The Office for Civil Rights has tended to treat it as ethnic discrimination, which Title VI would prohibit. Regardless, the report's empirical findings are troubling:
Ultimately 55% of the American Muslim students surveyed reported being subjected to some form of bullying based on their religious identity. This is twice as high as the national statistic of students reporting being bullied at school. Many students experienced multiple types of bullying; however, the most common type of bullying American Muslim students faced was verbal at 52%.
CAIR-CA also considered gender-based differences in survey responses. Remarkably, more male students reported experiencing bullying. However, the percentage of females who reported experiencing discrimination by a teacher or administrator was slightly higher. Of the female respondents who wear a hijab, the Islamic headscarf, 29% reported being offensively touched by another student, and 27% reported being discriminated by their teacher.
There were also two key findings in the students’ responses to questions about their feelings regarding their school environment. The percentage of students who reported feeling that they were comfortable participating in class discussions about Islam or countries where Muslims live decreased 4 by 4 percentage points, from 80% in 2012 to 76% in 2014. Moreover, only 67% of students felt teachers and administrators were responsive to their religious accommodation requests. American Muslim youth continue to identify student-teacher relations as needing improvement. Many students’ comments referenced increased problems in the classroom during discussions about 9/11, mainly due to teachers either failing to address harassment by other students against Muslim students or discriminating against Muslim students themselves.
Tuesday, October 13, 2015
Last August I posted an announcement from the First Amendment Law Review (FALR) here at the University of North Carolina School of Law for submissions for brief but engaging articles related to free speech in higher education. They have now extended the deadline until January 8, 2016. Borrowing now from the announcement in August:
Tuesday, September 29, 2015
School Speech Shorts: School District Employees Entitled to Qualified Immunity in Facebook Search Suit; Univ. of Kansas Cannot Expel Student for Off-Campus Tweets
The Fifth Circuit recently reversed a district court's decision denying qualified immunity to officials of a Mississippi school district on a First Amendment claim. The case arose when a teacher in the Pearl Public Schools, who served as the school's cheer squad sponsor, coercively requested a student's Facebook log-in information, accessed her Facebook messages, and later punished the student by removing her from the cheer squad because of the messages' content. After the student was dismissed from the squad, her parents filed a § 1983 action alleging that school officials violated their daughter's First and Fourth Amendment rights by searching her messages. The Fifth Circuit held that the school officials were entitled to qualified immunity because the law was not “clearly established” when the incident occurred (September 2007) that searching a student's Internet messages would violate either the First or Fourth Amendments if the teacher was acting on a reasonable suspicion that that the student had posted threatening messages immediately after a school event. The finding of qualified immunity was compelled, the Fifth Circuit explained, by conflicting rulings in school search cases until the Supreme Court handed down Safford Unified Sch. Dist. No. 1 v. Redding in 2009. The circuit court likewise held that school officials had qualified immunity on the First Amendment claim, because they did not have "fair warning," given the available precedent, that removing the student from the cheer squad because the content of her Facebook messages would violate the First Amendment. Read the opinion in Jackson v. Ladner, No. 13-60631 (5th Cir. Sept. 15, 2015) here.
A Kansas appellate court held last week that University of Kansas had no authority to expel a student for posting sexually harassing tweets about another student even though the university had ordered him not to contact the other student. The harassing communications were done off-campus, and construing the University's student code, the court concluded that the "only environment the University can control is on campus or at University sponsored or supervised events." The case is Yeasin v. Univ. of Kansas, No. 113,098 (Kan. App. Sept. 25, 2015).
Wednesday, September 16, 2015
The Third Circuit recently upheld a summary judgment finding in a teacher’s retaliation claim after she was discharged after her derogatory comments about students gained national attention. The Third Circuit held that while the teacher’s speech may have touched on a matter of national concern, it caused sufficient disruption for the students and the school district to warrant the teacher’s discharge, and thus speech was not protected under Pickering v. Board of Education. The case arose when a teacher for a Pennsylvania school district, Natalie Munroe, began a blog entitled "Where are we going, and why are we in this hand basket?" In the blog, Munroe discussed personal matters but also complained about her students, her co-workers, and the school where she worked. She did not expressly identify either where she worked or lived, the name of the school where she taught, or the names of her students, but described students as the “devil’s spawn,” and “rat-like.” Students and the school district discovered the blog, and after complaints about Munroe’s professionalism, the school district assigned a “shadow teacher” to teach Munroe’s subject at the same times that Munroe did and allowed students to opt-out of Munroe’s class. Munroe meanwhile became a minor celebrity in the national media because of the views expressed on the blog. Eventually, the school district discharged Munroe, and she brought a retaliation claim under 42 U.S.C. § 1983, alleging that the district violated her First Amendment rights. She claimed that her termination based on her private blog and her media interviews. The Third Circuit found that Munroe’s national media interviews did not rise to the level of constitutionally protected expression, finding that “Munroe’s various expressions of hostility and disgust against her students would disrupt her duties as a high school teacher and the functioning of the School District.” The Third Circuit concluded that the district’s interest in eliminating Munroe’s disruptive speech and presence outweighed her “interest, as well as the interest of the public, in her speech.” Munroe v. Central Bucks School District, No. 14-3509 (3d Cir. Sept. 2015) is here.
Free speech and academic freedom have long exposed cultural and political tensions on college campuses. But in the past few years, those who would restrict free speech have seemingly gotten a foothold in the debate that they otherwise would have been laughed out of. In other words, they have managed to start a debate over long settled principles. They have been able to convince some universities and professors to include warnings or triggers on their syllabi. These triggers would warn students in advance about topics, books, and issues that they might find objectionable or offensive. Some students have even managed to get themselves exempted from certain readings and assigned alternatives. Some have complained to their legislators about being exposed to ideas they did not like and managed to get them to punish public universities by defunding certain programs. Some have gotten invited speakers uninvited because they were too controversial.
They now seem to have gotten the attention of presidential hopeful, Ben Carson, who appears to be taking up their cause. Speaking of his policy proposals for the Department of Education, he said: “I think the Department of Education should monitor institutions of higher education for political bias and withhold federal funding if it exists,” Carson told Las Vegas radio host Heidi Harris. Of course, political bias is not confined to one party, but the notion that a politician, rather than an academic, would be the arbiter of political bias is problematic to say the least, particularly if that politician comes from a party that has tended to resist things like the expansion of civil rights, the protection of free speech, and the calls for politically correct discourse.
Interestingly, President Obama jumped into the conversation this week. At a town hall meeting, he pushed back against Carson and the censorship occurring on campuses. In response to Carson, he said: