Tuesday, December 10, 2013
Seventh Circuit Upholds Firing of School Counselor Who Wrote Relationship Advice Book Titled "It's Her Fault"
The Seventh Circuit Court of Appeals has upheld the dismissal of a tenured school guidance counselor's lawsuit who was fired after writing a sexually explicit book entitled It's Her Fault. While upholding the counselor's firiring in Craig v. Rich Twp. High Sch. Dist. 227, 13-1398, 2013 WL 6235856 (7th Cir. Dec. 3, 2013), the appellate court reversed the district court's finding that the book was not a matter of public concern. The case presents some tension, however, in deciding when an employee can be discharged for private sexual expression that would otherwise be protected by the First Amendment. Bryan Craig, a counselor and women's basketball coach at Rich Central High School in suburban Chicago, self-published It's Her Fault, an adult relationship advice book in 2012. Commenting on the book's subject, the 7th Circuit noted that "when we say “adult,” we mean it in every sense of the word—in his book, Craig repeatedly discusses sexually provocative themes and uses sexually explicit terminology." (A brief look at It's Her Fault's Amazon reviews generally supports that assessment.) In the book's introduction, Craig said that he was qualified to give women relationship advice because he coached girls basketball, worked "in an office where I am the only male counselor, and [was] responsible for roughly 425 high school students a year, about half of whom are females.” Craig also thanked his students in the acknowledgements and had another Rich Central write the book's foreword. In September 2012, the Richman Township High School District found out about the book and discharged Craig on three grounds: (1) that the book “caused disruption, concern, distrust and confusion among members of the School District community;” (2) Craig violated the policy “prohibit [ing] conduct that creates ‘an intimidating, hostile, or offensive educational environment;” and (3) that “Craig failed to present [himself as] a positive role model and failed to properly comport himself in accordance with his professional obligations as a public teacher.” Craig sued the school district under 42 U.S.C. § 1983 alleging retaliation against him for engaging in protected speech. The Northern District of Illinois dismissed Craig's suit for failure to state a claim because It's Her Fault did not address a matter of public concern and thus was not entitled to First Amendment protection. Read more after the jump.
Monday, December 2, 2013
Wisconsin Student Speech Decision Reverses on First Amendment Grounds but Affirms Adjudication on Unlawful Computer Use
While the Wisconsin Court of Appeals reversed a student’s disorderly conduct juvenile adjudication on First Amendment grounds last week, the appellate court curiously affirmed the adjudication for violating a state unauthorized-use-of-a-computer statute for the same conduct. Those who follow the developing law of federal unauthorized use statutes will recognize the bedeviling issues that arise when defendants are prosecuted for protected First Amendment speech because of the method used to deliver that speech--a computer. The Wisconsin student, Kaleb K., was prosecuted under state disorderly conduct and unauthorized computer use statutes after posting a YouTube video about his Spanish teacher. At trial, the lower court rejected Kaleb's claim that “the content of his rap was protected by the First Amendment, which barred the State from prosecuting him for disorderly conduct.” The trial court’s findings focused on the rap’s vulgar language without addressing the student’s First Amendment defense. The lower court found the student delinquent for disorderly conduct for the video and for a violating a state law prohibiting the unlawful use of a computerized communication system. The unauthorized use law prohibits using computer communication to send a message to another person “with intent to frighten, intimidate, threaten or abuse … with the reasonable expectation that the person will receive the message and in that message uses any obscene, lewd or profane language or suggests any lewd or lascivious act.” The Wisconsin Court of Appeals affirmed Kaleb K.’s adjudication of guilt on the unlawful use of a computerized communication system under a state case holding that “nonspeech elements” of otherwise protected speech may be subject to prosecution. Given the Court of Appeals’ interesting split reasoning, this case may be headed to Wisconsin’s Supreme Court. The case is In re Kaleb K., No. 2013AP839, 2013 WL 6182562 (Wis. Ct. App. Nov. 27, 2013).
Just before Thanksgiving, a fight broke out between two students at Millennium High School in Goodyear, Arizona, over one student displaying a confederate flag on his car. The school's response: suspend both students for five weeks and ban the student from displaying the confederate flag. The student who displayed the flag still objects, arguing that the flag does not represent racism, but freedom. He offered the standard high school distinction: “The flag means basically more independence, less government. It didn’t mean racism, it didn’t mean slavery, it didn’t mean any of that. It basically meant what they were fighting for was their right to be independent and not have the government control them.”
The school district, of course, responded by pointing out that the confederate flag "has been proven to be patently offensive to certain groups and the courts recognize that.” Moreover, “[o]bviously there was some event that took place it was related to reaction to the flag and it did create an environment where it was disruptive.”
The school is right on courts' interpretation of the flag. Just last year, for instance, the Fourth Circuit in Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426 (4th Cir. 2013), ruled in favor of a school district that had stopped a student from wearing shirts displaying the Confederate flag because the shirts were likely to cause a substantial disruption to the school environment.
While the current student's position on the flag ignores a lot of history and, even as a high school student, I found such arguments to be silly, I often got the sense that many such students were sincere in their ignorance, which potentially makes these cases more complicated. If a student's argument is pretext, a school can easily intervene. But if the student is expressing a genuine, albiet ignorant, belief about independence, a student's argument gets a little better.
Schools have the authority to limit speech that poses a substantial disruption, but Tinker v. DeMoines, 393 U.S. 503 (1969), indicates that they must distinguish between disruptions that are a result of the person expressing himself and those that are a result of inaappropriate reactions by the listener or viewer. After all, there were some disruptions in Tinker when other students responded to Tinker's Viet Nam protest armband. If the response is, for instance, the result of the listener's immaturity, it is wrong to punish the speaker. This line, however, is far easier to draw in theory than reality, particularly when student speakers and listeners border on per se immature and ignorant in various respects.
In the context of the flag, even if the student's position is sincere, the student has to know that others do not see the flag the same as he does, which raises the question of whether such a student is just being coy in the slavery versus independence distinction. Even if the student does not support racism, the student is probably trying to incite a reaction. If the student were not hoping to incite some reaction, might not the student express his position a little differently? Then again, these are students and wisdom is not to be expected.
Rather than engage in pyscho-babble courts take the understandbly easy route out of these cases and just label the flag disruptive. As a practical matter, I suppose that is correct, but skipping analytical steps is dangerous. Consider the fact that in Hinduism a swatiska is a geometric represenation of the god Ganesha. As a general principle, a school might be inclined to perceive swatiskas as inherently disruptive, just like the confederate flag, but that rationale would quickly fall apart if the school sought to prohibit a Hindu student from displaying it.
(image with permission from Jean nguyen)
Wednesday, November 20, 2013
The Ohio Supreme Court affirmed yesterday a lower court's decision that a teacher could be fired for insubordination, thus avoiding a constiutional question of whether his teaching creationism and intelligent design in science classes imposed religious values on students. John Freshwater was a tenured high school science teacher who worked in the Mount Vernon City School District for twenty years. He had never been disciplined, even though he taught creationism and intelligent design in his eighth grade science classes, a violation of the school district's Academic Content Standards. The school board asked Freshwater to remove religious displays in his classroom such as the Ten Commandments and a poster depicting a Biblical verse above a photograph of former President George W. Bush and former Secretary of State Colin Powell in prayer. The district also warned Freshwater not to proceed with a plan to “critically examine” evolution in his science class. Freshwater ignored both dictates. Freshwater was fired in 2007 after using a Tesla Coil to make a cross on a student's arm that lasted over a week. (He denied intending to do so.) The Mount Vernon City School Board terminated Freshwater for cause because he "injected his personal religious beliefs into his plan and pattern of instructing his students that also included a religious display in his classroom," and for insubordination. Freshwater v. Mt. Vernon City Sch. Dist. Bd. of Edn., 2012-Ohio-889 (Ohio Ct. App. Mar. 5, 2012). The Ohio Supreme Court yesterday found the record supported Freshwater’s termination for insubordination in failing to comply with orders to remove religious materials from his classroom. The Court agreed that the district complied with the First Amendment by not allowing a public school teacher to “engage in any activity that promotes or denigrates a particular religion or religious beliefs while on board property, during any school activity” or when he was teaching." Because the court found that good cause existed for Freshwater's termination, it declined to reach the constitutional issue of "whether Freshwater impermissibly imposed his religious beliefs in his classroom." Read Freshwater v. Mt. Vernon City School Dist. Bd. of Ed. here.
Tuesday, November 19, 2013
Case Alleging School Interfered with Protests of Mistreatment of Lesbian, Gay, Bisexual and Transgendered Students Moves Forward
Amber Hatcher, a student at Desoto County High School, filed a lawsuit against the Desoto County School Board, the Principal at her high school, and other school officials alleged that they "have engaged and are engaging in conduct which violates her First Amendment rights. In April, 2012 [Hatcher] sought to organize and participate in the National Day of Silence at her high school in an effort to bring attention to the harms associated with bullying and harassment directed at lesbian, gay, bisexual and transgender students." Hatcher asserts that the school interfered with her ability to bring attention to the issues and that it plans to do so again this year.
In Hatcher ex rel Hatcher v. DeSoto County School Dist. Bd. of Educ,, 939 F.Supp.2d 1232 (M.D. Fla. 2013), the district court found that "[a]t least some of these proposed activities were well within the First Amendment and required no approval by any school official, e.g., remaining silent outside of class, communicating in writing or by dry erase board outside of class, non-vulgar conversations about the upcoming National Day of Silence." Thus, it denied the defendant's motion to dismiss and claims of qualified immunity.
Thursday, October 31, 2013
In August, Emily Gold Waldman's post on the First Amendment "I [Heart] Boobies" case noted how school policies piecing out acceptable cancer awareness clothing from the "lewd" can get messy. Last Friday, Friendly High School in Prince George’s County, MD, handed out in-school suspensions to students who showed up to school in Breast Cancer Awarness Month t-shirts. Seventy-five students showed up in pink shirts to celebrate October's "Pink Out" breast cancer campaign that readers may have seen during NFL, WNBA, MLB, and PGA Tour events this month. But pink shirts violate the district's uniform policy, and the principal told students in advance that they could not hold their annual “Pink Out.” When students showed up anyway wearing pink shirts, they were ordered to cover up or receive in-school suspensions. The students given in-school suspensions were told that they would receive an unexcused absence and zeros for their classes. Here's the messy part: the first wave of students apparently were ordered to cover up the pink shirts with some acceptable ones that the school had around. Those students went on to class. But the school ran out of acceptable cover-up shirts, so students who showed up later got in-class suspensions. Yesterday, the district posted an apology on Friendly High's website for the "confusion regarding our school’s Breast Cancer Awareness event this year... The student Pink-Out that occurred on Friday has made the school district aware of the issues that can result from inconsistencies in uniform policies for special commemorative events." Instead, the school allowed all students to wear pink ribbons yesterday. I suspect (or hope at least) that the school rescinded the in-school suspensions because of the inconsistent policy. Read more at the National School Boards Association here.
The Pennsylvania’s House Education Committee has passed a bill (the “National Motto Display Act”) that would require all public schools to display the words “In God We Trust.” It is not yet clear when or if the measure will be put to a floor vote. Should it become law, it will inevitably lead to high-profile, divisive litigation which will require some unfortunate federal district judge to confront the Supreme Court’s confusing pronouncements about government religious speech.
“In God We Trust” began appearing on U.S. coins in 1864 (during the Civil War) and was adopted as the national motto in 1956 (during the Cold War). (In each case, one motivation may have been to proclaim that God was “on our side” of the conflict.) The still-governing principles of Establishment Law (i.e. the Lemon, endorsement, coercion tests) would suggest that these invocations of God are unconstitutional. If the government is supposed to remain neutral in matters of religion and is forbidden from “declaring religious truth” (as Prof. Andrew Koppelman would put it), “In God We Trust” looks to be clearly unconstitutional. Like “Under God” in the Pledge of Allegiance, the national motto is a statement of what defines and unites us a people – and what unites us is said to be faith in (read most broadly) the God of the Abrahamic religions (Judaism, Christianity, Islam). That is hardly neutral. Nevertheless, it is impossible to imagine that the current Supreme Court (or, for that matter, more liberal past Courts) would actually rule “under God” in the Pledge or “In God We Trust” on currency as unconstitutional. While rationales are harder to foresee, the end results are not. Consequently, we have a strong – and obvious – tension between principles and practice in the Court’s jurisprudence of government religious speech. In her role as median justice on church-state issues, Justice O’Connor sought to resolve the tensions by treating “under God” and “In God We Trust” as instances of ceremonial deism. Today, somewhere between two and five of the Justices might resolve the conflict by abandoning the principle of neutrality altogether and stating that government may embrace “monotheism,” if not Christianity. (This would be a bad idea, in my view, but that is a larger topic than a blog post permits.) Until the Court either explains or dissolves the tension between theory and practice, lower courts face a difficult job.
Tuesday, October 29, 2013
Last week, there was major press coverage of Rittman High School officials’ decision to kick a 16-year-old football player off the team and suspend him from school because he wrote a poem criticizing his coach. News outlets like Sports Illustrated, and Fox News, as well as many regional papers, reported the story. I was happy to later read that after reconsideration, the school district – located in Rittman, Ohio – reversed the punishment and let the student back on the team. (In fact, I’d been all set to write a post urging precisely this outcome.)
How schools can and should deal with hostile student speech about school officials is a fascinating issue, one that has become even more prominent with the rise of digital speech, where students often feel less inhibited. This particular speech, however, was not digital. Rather, the student, Nick Andre, wrote a poem for an English composition class, in response to an assignment asking him to focus on something that made him angry. His poem, entitled “Stupid,” referred to the head football coach, whose 25-year-old son served as offensive coordinator and whose high-school son was a member of the team. Andre’s poem mentioned “favoritism” on the team, talking about “the inability to separate being a father and a coach” and “continuously doing what doesn’t work.” After Andre read the poem to his class, the principal suspended him and kicked him off the team on grounds that he wrote a “mean and disrespectful poem about another student and our athletic director/head coach.”
In an article I wrote a few years ago on hostile student speech about school officials, “Badmouthing Authority: Hostile Speech About School Officials and the Limits of School Restrictions,” 19 William & Mary Bill of Rights Journal 591 (2011), I observed that such hostile speech basically falls into three main categories: (1) speech that arguably threatens a school official; (2) speech that is primarily vulgar about a school official, and (3) speech that, while expressing non-threatening hostility toward a school official, also expresses a substantive viewpoint about that official’s behavior. I was particularly concerned that schools were too quick to restrict even the third category of student speech when it occurred at school, running the risk of suppressing legitimate student dissent.
Tuesday, October 22, 2013
Christopher and Sarah Lubienski's newest book, The Public School Advantage: Why Public Schools Outperform Private School, reaches some counter-intuitive and significant conclusions. First, contrary to the assumptions of many and some older research, private schools are not outperforming public schools. To the contrary, public schools are outperforming. There seems to be some nuance not fully explored in this global finding, such as whether some subsets like secular academic private schools are outperforming public schools. Those questions were not answered because the data insufficient to draw firm conclusions comparing private schools amongst themselves. But the overall finding regarding private versus public public schools is clear: while the raw achievement scores in some private schools may be higher than those in public schools, it is only because they disproportionately enroll wealthier and other demographically privileged groups of students. When those demographic factors are controlled, there is no "value-added" benefit of private school. In fact, there is value lost.
This leads to the second question: why are private schools underperforming? The Lubienski's conclusion is that:
It appears that there is a danger in the autonomy that private schools have. The teachers aren’t required to be certified, there is less professional development happening, they’re not held accountable to the same kinds of state curriculum standards and tests. And so when we look at scores on those things it just makes sense that the schools who are hiring teachers who are certified and have been educated in a way that helps them understand all the current educational reforms and the research on learning—that those teachers would be more effective. Particularly more effective at educating students on the state standards...So, yeah, the autonomy of private schools may not be all it’s cracked up to be.
These findings are obviously of crucial importance in the debate over vouchers, as the premises behind vouchers are at odds with these new findings. Moreover, if one drops the assumed academic advantage of going to private school through vouchers, the remaining basis/justification seems more aligned with supporting parents religious motivations. The Court was able to dodge this problem in Zelman v. Simmons-Harris, but studies like this would suggest we revisit that question.
Monday, October 21, 2013
The National School Board Association reports that the American Humanist Association has filed a lawsuit against the Greenville (SC) County School District arguing that the District violated the Establishment Clause violated the Establishment Clause by including prayers in an elementary school graduation ceremony and by conducting the ceremony in the chapel of North Greenville University, a private religious school affiliated with the Southern Baptist convention. The matter of the prayers seems straightforward and is mainly interesting as a reminder that even fifty years on, the school prayer decisions are not always treated as law. Although the prayers were led by students, the complaint alleges that the prayers were listed in the official program and that school officials asked students to write the prayers and reviewed their content. If this is true, the practice seems plainly unconstitutional under Lee v. Weisman, 505 U.S. 577 (1992). Indeed, the District’s general counsel already seems to have conceded as much by stating that any future student-led prayers at school-sponsored events would be conducted “under different circumstances than that of the May 30, 2013 program.” Still, the District has refused to meet the plaintiffs’ demand for a “policy that prohibits student-initiated and led prayer” at all future school events. In holding open the possibility of a different approach to student-led prayer in the future, the District gestures toward the idea that under certain conditions, an island of “truly private” (and thus constitutionally permissible) student religious speech might exist in the context of a graduation ceremony. While there is some case law supporting this notion, Santa Fe Indep. Sch. District v. Doe, 530 U.S. 290 (2000) signals that rendering student prayers at school events “wholly private” is no easy matter. Given the young age of the children here and the history of obvious constitutional violations, courts would and should take a skeptical eye toward future variations on the student-led prayer strategy.
The location of the graduation ceremony in a Christian Chapel at a private Christian university raises more interesting questions. The leading case is Doe v. Elmbrook Sch. Dist., 687 F.3d 840 (7th Cir. 2012) (en banc). There, the court found an Establishment Clause violation where two local high schools held their (wholly secular) graduation ceremonies in the sanctuary of an evangelical “megachurch.” The majority conducted a fact-specific analysis and emphasized the overtly Christian character of the surroundings, while dissents by Judges Posner, Easterbrook, and Ripple thought the use of the church permissible in the absence of evidence that the site had been chosen for any reasons other than secular considerations such as size, air conditioning, parking, and more comfortable seats. A petition for certiorari in Elmbrook is pending before the Supreme Court. In the meantime, the Greenville schools have responded that if they use North Greenville University’s chapel in the future, they will ensure that the space is “devoid of religious iconography that would lead a reasonable observer to believe that the district is endorsing religion.” This language may well be based on a reading of the Elmbrook majority opinion, which appears to suggest that a “church building” would be acceptable if sufficient steps were taken to temporarily de-sacralize the space. But perhaps the purportedly fact-specific majority analysis would not work with younger children, and having courts decide how much “religious cleansing” is enough seems unappealing for reasons given by the Elmbrook dissenters. To my mind, a better approach might focus less on the church environment than on the question of the available alternative spaces and the light they shed on why a religious site was chosen for an important school ceremony. (Even the Elmbrook majority opines that if the megachurch were the only suitable space in town, the case might have come out differently). The Greenville complaint alleges that there were other suitable sites, which (if true) would lead me to conclude that using the university chapel was unconstitutional. Much would depend, though, on the definition of “suitable” and presumptions about proof of suitable alternatives. I suspect the Supreme Court’s ideas about those matters might be different from mine.
Tuesday, October 8, 2013
Several cases have come up in the past few years testing the boundaries of schools' authority to discipline students for on-line speech. The Supreme Court has yet to offer any direction in these cases, and inconsistencies abound among some lower courts. Fayette County Public Schools in Georgia avoided those thorny issues in a case that involved poking fun at a student, rather than punishing her. In a presentation on internet security and social media use that was open to the public, the district displayed a powerpoint slide that included a cartoon entitled “Once It's There—It's There to Stay.” The slide "featured a picture of [a current student] in a bikini standing next to a life-size cutout of singer Calvin 'Snoop Lion' Broadus (also known as 'Snoop Dogg'). [The district official] found this photo by browsing students' Facebook pages for pictures to use in his presentation. The picture was originally taken when [the student] accompanied a friend on her family's vacation, which [the student] contends did not involve sex or alcohol. The slide included [the student's] full name."
The student brought suit against the district, alleging violations of the 4th and 14th amendments, along with state law. The district court in Chaney v. Fayette Count Public School Dist., 2013 WL 5486829 (N.D. Georgia 2013), dismissed all the claims, largely on the rationale that the student had made the picture public. Leaving to the side whether the district was wise to use the photo, I think the court got it right. While students have legitimate objections regarding being punished for their on-line speech or having their privacy invaded, once they speak on-line and open their lives to the public, they likewise open themselves open to others commenting on it. After all, the listeners and viewers have free speech rights as well (subject to defamation and other analogous law).
Tuesday, October 1, 2013
Lincoln Brown, a middle school teacher in Chicago, was dismissed in the fall of 2011 for a discussion he lead in class about the n-word. In his sixth grade grammar class, he
Friday, September 27, 2013
Texas' textbook and curriculum adoption committees just cannot seem to stay out of the news. Initially, the states decision to shift textbook selection from the districts to the state raised eyebrows. Then in 2010, it was their decision to purchase books with a conservative slant on history and economics that made the news. The importance of this shift also had national repercussions because the number of textbooks that Texas buys allows them to shift the national market and create trends toward Texas' action. Now, Texas is taking on biology and seeking to include creationism in every biology book in the state. Here are some snippets from the statewide adopters' rationale and comments regarding books they wanted to reject or adopt:
- I understand the National Academy of Science's [sic] strong support of the theory of evolution. At the same time, this is a theory. As an educator, parent, and grandparent, I feel very firmly that "creation science" based on Biblical principles should be incorporated into every Biology book that is up for adoption.
- Text neglects to tell students that no transitional fossils have been discovered. The fossil record can be interpreted in other ways than evolutionary with equal justification. Text should ask students to analyze and compare alternative theories.
- [We] don't really know that the carbon Cycle [sic] has been altered. [Even if it was,] in reality we don't know what climate change will do to species diversity…Question seems to imply that ecosystems will be disrupted which qwe [sic] simply don't know yet.
- There is no discussion of the origin of information bearing [sic] molecules which is absolutely essential in any origin of life scenario. Meyer's Signature in the Cell easily dismisses any RNA first [sic] scenario. The authors need to get caught up.
Monday, September 16, 2013
Special Education Teacher Who Objected to School’s Inclusion Plan Failed to State Valid Retaliation Claim Under § 504 or First Amendment
The Tenth Circuit has rejected a former special education teacher’s § 504 and First Amendment retaliation claims based on her reassignment to a general education classroom in Duvall v. Putnam City Sch. Dist. No. 1. The federal circuit court found that the teacher’s reassignment, after she protested her school’s special education policies, was supported by a legitimate reason and that her statements were made as part of her official duties, for which she was subject to employer discipline under the Garcetti/Pickering test. The teacher, Louise M. Duvall, was a special education teacher in Oklahoma when she protested her school’s decision to adopt a “full inclusion” model for providing special education services in the 2007-2008 school year. The full inclusion model integrates special education students into general classrooms by having special education teachers co-teach in those classrooms. Duvall was concerned that this inclusion model would not allow her to provide special education services such as “pull-out services”– one-on-one or small group instruction for special education students away from general education classrooms. She voiced her concerns that the inclusion model did not comply with federal disability education laws. Duvall also dissented to most of the IEPs with which she was involved during the school year and asked state agencies for information about “services for children.” She believed that those acts got her into trouble with school administrators. The next school year, the principal reassigned Duvall to a first-grade classroom, because he “believed she would be happier and more comfortable in that position and that such a move would greatly benefit her, her students, and the school.” Duvall protested the move, saying that she did not want to lose the extra five percent of pay that she received as a special education teacher. Duvall then resigned and sued the Putnam City School District and the school’s administrators under the Rehabilitation Act and the First Amendment, claiming that her reassignment to teaching first-grade was in retaliation for her opposition to the inclusion model. The Western District of Oklahoma granted summary judgment in favor of the school district on all of Duvall’s claims.
On appeal, the Tenth Circuit agreed that while Duvall’s reassignment was an adverse employment action, Duvall did not prove that the district’s stated reason for reassigning her was illegitimate or pretextual under McDonnell Douglas. Given that the school district was committed to a special education model to which Duvall was strongly opposed, the district’s stated reason for reassigning her—because the move would benefit her and the school—was not unworthy of belief, the circuit court found. The Tenth Circuit also found that Duvall’s letters and IEP dissents were not protected speech that was insulated from employer discipline under the First Amendment. The circuit court, applying Garcetti/Pickering, found that Duvall’s duties as a special education teacher included ensuring compliance with state and federal law, and thus her speech about the district’s meeting those obligations was undertaken in the course of her official duties. The Tenth Circuit further found that Duvall could not show that her statements to the State Department of Education about the full inclusion model caused her reassignment, because she failed to show that her direct employers were aware of the content of her views about the full inclusion model. Read the full opinion in Duvall v. Putnam City Sch. Dist. No. 1, No. 11-6250 (10th Cir. Aug. 5, 2013) here.
Friday, September 13, 2013
Emily Gold Waldman shared this analysis with us:
When the Supreme Court held in Garcetti v. Ceballos that public employees do not have First Amendment protection for speech that they utter pursuant to their official duties – even if that speech is on a matter of public concern – it created a special carve-out. Responding to a concern raised in Justice Souter’s dissent about professors’ academic freedom, the majority explicitly stated that it was not deciding “whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” Since then, lower courts have had to grapple with two questions: (1) how does Garcetti apply to K-12 teachers’ job-related speech? and (2) how does Garcetti apply to university professors’ job-related speech?
So far, the circuits have been unanimous that Garcetti indeed applies to K-12 teachers’ job-related speech (essentially their classroom speech, the main aspect of their job). See, e.g., Johnson v. Poway Unified School District, 658 F.3d 954 (9th Cir. 2011); Evans-Marshall v. Board of Education, 624 F.3d 33d (6th Cir. 2010); Mayer v. Monroe County, 474 F.3d 477 (7th Cir. 2007). In other words, once the court finds that the teacher was speaking in her capacity as an employee rather than as a private citizen, the teacher loses her First Amendment claim.
By contrast, circuits are starting to hold that Garcetti does not apply to university professors’ job-related speech (i.e., their teaching and writing). The Fourth Circuit so held in 2011, see Adams v. Trustees of the University of North Carolina-Wilmington, 640 F.3d 550 (4th Cir. 2011), and the Ninth Circuit reached the same conclusion last week in Demers v. Austin, 2013 WL 4734033 (9th Cir. 2013). Both circuits reasoned that the Garcetti Court had explicitly reserved judgment on this sort of speech, and that applying the Garcetti framework to the teaching and writing of public university professors would imperil their academic freedom. (Indeed, they would have no First Amendment protection for such speech; their only protection would depend on their contractual arrangements with their universities.)
This distinction makes sense, and I think other circuits will probably follow the trend of holding that Garcetti applies to K-12 public school teachers’ classroom speech, but not to public university professors’ teaching and writing. The one odd thing about Demers is that the Ninth Circuit used such broad language in several places– stating that “there is an exception to Garcetti for teaching and academic writing” – that it almost could be read to encompass K-12 teachers as well as university professors. If it weren’t for the Ninth Circuit’s earlier decision in Johnson v. Poway – where it specifically applied Garcetti to a high-school teacher’s classroom speech – I’d really be wondering about this. In any event, it will be interesting to see how other circuits – and ultimately the Supreme Court? – weigh in on these questions.
Wednesday, September 4, 2013
The 9th Circuit affirmed a summary judgment ruling last week against a Nevada high school student who was expelled for off-campus speech. Landon Wynar, then a high school sophomore, was expelled for sending instant messages threatening to shoot certain classmates, bragging that he would “take out” people. After his expulsion, Wynar and his father sued the school district, arguing that it violated Wynar’s civil and First Amendment rights by expelling him for messages sent while off-campus. The 9th Circuit found that the school reasonably regarded Wynar’s messages as a threat, and it did not have to wait until that threat materialized. The court stated, “The messages presented a real risk of significant disruption to school activities and interfered with the rights of other students. Under the circumstances, the school district did not violate Landon’s rights to freedom of expression of due process.” Read the court’s opinion in Wynar v. Douglas County School District here.
Monday, August 19, 2013
Last fall, the University of Missouri-Kansas City hosted a symposium that included various litigants and attorneys who were actually part of the Supreme Court's landmark student speech cases. It also included leading student free speech scholars. The articles from the the symposium are now available on westlaw. Below are abstracts.
Allen Rostron, INTELLECTUAL SERIOUSNESS AND THE FIRST AMENDMENT’S PROTECTION OF FREE SPEECH FOR STUDENTS, 81 UMKC L.Rev. 635 (Spring 2013)
Abstract: “Part I of this essay provides a basic review of the Supreme Court's significant rulings about the free speech rights of students. Part II looks at how the lower courts continue to be divided over difficult questions about the constitutional analysis required by Tinker and the Supreme Court's other key precedents on student speech. In particular, it illustrates the uncertain and disputed character of this area of First Amendment law by examining the varying approaches that lower courts have used in a line of cases about student displays of the Confederate flag. Part III
proposes that courts can make a small step forward by explicitly making intellectual seriousness a legitimate factor for school officials to consider in deciding what student expression to permit or prohibit.”
Emily Gold Waldman, No Jokes About Dope: Morse v. Frederick’s Educational Rationale, 81 UMKC L.Rev. 685 (Spring 2013)
Abstract: “This piece begins with a “protective” reading of Morse, showing how this rationale provides a good starting point in understanding Morse but is ultimately incomplete. Indeed, Justice Stevens' dissent is largely an argument that the protective rationale falls short here. I then re-examine Morse from the perspective of the educational rationale and conclude that the underlying, largely unstated premise of the Morse majority is that schools-as part of teaching students about the gravity of drug use- should be able to convey disapproval of messages suggesting that drug use is a joking or trivial matter. This helps to explain why Justice Stevens' argument-that Frederick's message was “stupid” and that he was just seeking attention-was wholly unconvincing to the majority, which was disturbed by those very aspects of Frederick's speech. It also helps to explain Justice Alito's concurrence, in which he distinguished between Frederick's speech and any speech that could “plausibly be interpreted as commenting on any political or social issue.” What harmed Frederick was that his speech minimized the seriousness of drug use while lacking the redeeming value of conveying a genuine message. In Justice Alito's eyes, a thoughtful argument for legalizing marijuana would deserve more protection than Frederick's banner, regardless of whether the former might actually have greater potential to persuade at least some students to experiment with it. I conclude with some reflections about why the Court left Morse's educational rationale in the subtext, rather than explicitly articulating it, and what this suggests for how the Supreme Court is approaching student speech cases.”
Andrew W. Kloster, Speech Codes Slipping Past the Schoolhouse Gate: Current Issues in Student’s Rights, 81 UMKC L.Rev. 617 (Spring 2013)
Abstract: “The areas outlined in this article are not the only active areas in the struggle for students' rights. Courts and school administrations are still grappling with the effects of disappointing Supreme Court decisions in Christian Legal Society v. Martinez and
Garcetti v. Ceballos. And, of course, even plainly unconstitutional speech policies exist at many
schools, requiring perpetual vigilance on the part of First Amendment advocates. But the areas outlined in this article are particularly unsettled. In Part II, this article will address the question of First Amendment limitations on off-campus, out-of-school speech. Part III examines the approaches to off-campus, out-of-school speech by the courts. In Part IV, this article will explore the ways in which uneven qualified immunity jurisprudence provides a patchwork of legal remedies across the nation. Part V will address some ways in which public schools, particularly at the college level, do an end-run around the First Amendment by outsourcing speech restriction to third parties. These three issues represent the cutting edge of today's students' rights advocacy. The
root of most of the problems is largely a lack of clear guidance by higher courts. American schools are the flowers of democracy; expression there must prosper if we are to have confidence in the legitimacy of our democratic institutions.”
Wednesday, August 14, 2013
Last week, the Third Circuit issued its en banc opinion in B.H. v. Easton Area School District – aka the “I [heart] boobies” case. Some quick background: as part of its work to educate thirteen- to thirty-year-old women about breast cancer and encourage them to perform self-examinations, the Keep A Breast Foundation began an initiative entitled “I [heart] boobies.” Part of the campaign involved selling silicone bracelets emblazoned with “I [heart] Boobies! (KEEP A BREAST)” and “check yourself! (KEEP A BREAST)”. Two middle-school girls purchased the bracelets with their mothers and wore them to school; after a few weeks, the school decided to prohibit bracelets containing the word “boobies,” although it encouraged students to wear other items in honor of Breast Cancer Awareness Month, such as the traditional pink ribbons. The students (through their mothers) sued and were successful in getting a preliminary injunction from the district court; the Third Circuit then decided to hear the case en banc.
In a 9-5 split, the Third Circuit affirmed, ruling that the ban on the bracelets violated the First Amendment. The court rejected the school district’s argument that Fraser’s “plainly offensive” standard justified the ban. Interestingly, the court applied a gloss from Morse v. Frederick to the Fraser standard. The court explained that in Morse, Justice Alito – who wrote a separate concurrence and provided the crucial fifth vote – had distinguished between pure pro-drug advocacy and speech “that can plausibly be interpreted as commenting on any political or social issue.” Building on this, the court articulated a new Fraser framework: (1) plainly lewd speech can always be restricted in schools; (2) speech that isn’t plainly lewd, but that a reasonable observer could interpret as lewd, can be categorically restricted as long as it doesn’t plausibly comment on political or social issues; and (3) speech that isn’t plainly lewd, and that can be plausibly interpreted as commenting on political or social issues, can’t be categorically restricted (although it still can theoretically be restricted under Tinker). The majority ruled that this speech fell into category (3): “boobies” wasn’t categorically lewd, and the overall message contained political/social commentary on breast cancer awareness.
There’s a lot I like about this opinion. I’ve long thought that Alito’s emphasis in Morse on the presence of some sort of political/social commentary in student speech provides a helpful dividing line, even though it can get blurry at the margins. One of the dissents argued that it was inappropriate to let Morse inform the Fraser standard – that each student speech case is an “independent analytical construct.” But if we are trying to create an overall student speech framework that makes sense, I think it is helpful to think thematically and consider how the cases overlap and inform each other. Indeed, Alito’s discussion in Morse echoed Fraser’s own emphasis on the absence of political content in the student speech at hand. And in theory, I think the framework that the Third Circuit articulated makes a lot of sense.
That said, there are some pretty obvious controversies coming down the pike. The majority went out of its way to hold that “I [heart] Tits” could still be restricted as plainly lewd, but expressly declined to reach the “I [heart] Balls” slogan that is already being used by the Testicular Cancer Awareness Project, which is selling “feelmyballs” bracelets.
I also can’t help wondering about how this case would have played out if it were a middle-school boy initially wearing the “I [heart] boobies” bracelet. The court emphasized that “the subjective intent of the speaker” is irrelevant in the Fraser analysis, but it nonetheless set forth the sympathetic facts here: the speakers were girls who had bought the bracelets with their mothers to commemorate friends and relatives who had suffered from breast cancer. I suspect that not all the middle-school wearers of the “I [heart] boobies” and “feel my balls” bracelets will be coming from the same mindset.--Emily Gold Waldman
Monday, August 12, 2013
Consistent with the summer of school choice news, another interesting story just came out of Virginia. Virginia has an extremely lenient home school provision that exempts parents who home school for religious reasons from all state oversight. No records, no transcripts, no test scores and no proof of instruction. Now Josh Powell, a teenager, wants to go to public school, but his parents won't enroll him. Apparently, he asked local school officials to let him enroll, arguing that he was learning so little at home. According to him, he didn't know how to write an essay, didn't know South Africa was a country, and couldn’t solve basic math problems.
This case highlights what I have always felt was missing from the Supreme Court's seminal decision in Wisconsin v. Yoder, in which the Court held that the Amish's interest in exempting their children from high school education outweighed the interests of the state. In Yoder, the Court ignored the interests of the child and the possibility that they would be at odds with the parents. The Court reasoned that the child was not a party in the case and, thus, it did not address the issue. But of course, a child's interests are always at stake when determining the education he or she will recieve.
For more on the current dispute, see here. Presumably, Powell's only recourse will be legal. It would be interesting to see how a court balances his interest in education against his parents' statutory and constitutional right to control his upbringing.