Thursday, September 28, 2017
The title of this essay is more rhetorical than anything. Laws and courts, not students, shrink or expand free speech rights. Yet, student attitudes about free speech and other constitutional rights certainly have real world impacts and, in some instances, have incidental effects on legal doctrine. A new study by Brookings reveals that college students have a relatively narrow view of free speech rights. Students were asked if the First Amendment protects hate speech and here are their responses:
These opinions are having spillover effects on the policies that universities do and do not adopt. Universities are struggling to balance the interests of free speech against the anti-harassment concerns and student demands that some speakers simply not come to campus.
The Foundation for Individual Rights in Education (FIRE) has made it its business to challenge policies that restrict speech. That business appears to be growing. Two years ago, they filed a lawsuit against my University regarding its policies on free speech zones and the investigation of harassment claims, alleging those policies infringe on free speech rights. Interestingly, that case did not get to the merits. The University changed its policies and the district court dismissed the case as moot. Plaintiffs are now appealing the issue as to whether they are still entitled to an injunction against future actions by the University. This case is not unique. A quick look at FIRE's docket reveals a number of analogous cases have been filed and are pending in several other jurisdictions.
The point of this post is not to analyze the doctrine but to point out students' role in these shifts. This free speech shift reminds me of an article Jason Nance authored a couple of years ago about the increase in suspicionless searches in public schools. His empirical research strongly suggested that schools were regularly violating students' privacy rights.
The Supreme Court defines the scope of students' privacy rights, in part, based upon their reasonable expectations. So what happens when schools violate students' rights so often that they no longer expect privacy? Does that actually shrink their right to privacy? If so, Nance's research is extremely troubling.
In the case of free speech, what happens when students become so unable to countenance opposing points of view that they are actually wounded or harmed by those views? The First Amendment is tougher on this issue than the Fourth, but it warrants consideration because it is true that students have the right to be free from racially, sexually, and other forms of hostile environments. Thus, schools can restrict speech that crosses that line. I strongly defend the existence of that line and am sympathetic toward Universities that enforce it appropriately. Yet, the factual question of when an environment becomes hostile may very well be one that could move based on student attitudes.
Wednesday, August 23, 2017
Court Finds That Arizona's Decision to Bar Mexican-American Studies Was Motivated by Intentional Discrimination
Yesterday, a federal district court held that Arizona's decision to ban Mexican-American studies and the local district's enforcement of that ban were motivated by intentional discrimination. The court also held that restricting students access to that information violated the First Amendment.
As a matter of substance, the case marks a major victory for multicultural studies and places clear limits on partisan and other illegitimate attacks on them. As a matter of Fourteenth Amendment and First Amendment doctrine and analysis, the case is also noteworthy for professors. The opinion is a textbook example of basic constitutional analysis. Anyone looking to bone up on how to apply intentional discrimination and free speech doctrine should give it a read. Assuming the case stands on appeal, it will make a nice addition to education law casebooks or, in a modified form, a handout for class exercise.
First, the court recites the basic Arlington Heights standard for proving intentional discrimination in violation of the Fourteenth Amendment. The case is now in its 40th anniversary and somehow stood the test of time (notwithstanding how hard to makes it for plaintiffs to win discrimination cases). Under Arlington Heights, plaintiffs must show the defendant acted with a "discriminatory purpose." They can show this through circumstantial evidence, including: 1) the discriminatory impact of the decision; "2) the historical background of the decision; 3) the sequence of events leading up to the challenged action; 4) the defendant's departures from normal procedures or substantive conclusions; and 5) the relevant legislative or administrative history."
As on a law exam, the task here is to avoid looking just for smoking guns and instead walk through each factor in a "sensitive inquiry." The details can add up. That is exactly what the district court did, by the end of its opinion, it had amassed so much circumstantial evidence that the case would seem to stand even if the court botched a few facts. While the court pointed to direct evidence of racial animus in the case, it spent most of its time examining the more subtle details. It pointed out that the history of the program was to counteract the harmful effects of past segregation. It identified two procedural irregularities in how the Arizona statute was passed: a) the statute was targeted at a particular district rather than a statewide issue and b) other measures could have been used to deal with the purported problem with the program.
Next, the court examined the legislative history, inferring illegitimate motivation by many of the statute's proponents. Of particular interest was the court's willingness to look at "code words"--words that on their face might sound neutral, but in context could be used to convey racial animus. For instance, "Raza," "un-American," "radical," "communist," and "Aztlan" were all derogatory terms aimed at Mexican Americans during the debate over the program. These terms were not just attempts to win the debate, but were demeaning and racially charged. A less careful court could have dismissed their important. The court revealed, for instance, that the state superintendent had used "Raza" as a substitute for Mexican American, stating the program was "Raza studies for the Raza kids."
With these motivations laid bare, the First Amendment analysis was easy. The court recognized that the state and its schools have the authority to control the curriculum, but there is a major exception: when the control is exercised for partisan or illicit reasons rather than pedagogical concerns. As the Supreme Court held in Island Trees School District v. Pico, partisan motivations render an otherwise permissible curricular decision unconstitutional. Applying that standard, the trial court found that:
The stated policy of A.R.S. § 15-112 is to reduce racism in schools, see A.R.S. § 15-111, which is a legitimate pedagogical objective. The theory of plaintiffs’ First Amendment claim is that reducing racism is only a pretextual objective, and that the statute was in fact enacted and enforced for narrowly political, partisan, and racist reasons.
The Court concludes that plaintiffs have proven their First Amendment claim because both enactment and enforcement were motivated by racial animus.
Get the full opinion here: Download 468 Order and Opinion
Monday, August 14, 2017
Local news reports that a Missouri high school censored the yearbook comments of two openly gay students. The yearbook allows seniors to write a quote or statement under their picture, which becomes part of the published yearbook. One student wrote, “Of course I dress well. I didn’t spend all that time in the closet for nothing.” The other wrote, “If ‘Harry Potter taught us anything, it’s that no one should have to live in the closet.”
Without telling the boys, the school redacted those statements from the yearbook. After being called out, the principal issued this explanation:
District administrators were made aware of concerns regarding the removal of senior quotes from the school yearbook. Each year, graduating seniors are provided an opportunity to pick a favorite quote to be placed in the yearbook. In an effort to protect our students, quotes that could potentially offend another student or groups of students are not published. It is the school’s practice to err on the side of caution. Doing so in this case had the unintentional consequence of offending the very students the practice was designed to protect. We sincerely apologize to those students. All KSD staff understand the importance of inclusion and acceptance especially in an educational setting. We work diligently to help every student feel safe, supported, and included. District staff participate in ongoing training around issues of diversity and support student organizations that do the same. That being said, we acknowledge our mistake and will use it as a learning opportunity to improve in the future.
Two things strike me as off in this statement. First, I see nothing offensive about what the students said. It may be that some students at the school object to homosexuality, but that does not make the students' statements offensive in an of themselves. As one of the gay students suggested, this has little to do with offensive speech. Rather, the district “mak[es] me feel like you’re ashamed of having a gay student.” In other words, it is hard to imagine a legitimate reason for striking these statements in the first place. Who exactly made the decision and why?
Second, what exactly is the district admitting to be a "mistake" and "learning opportunity"? Is the mistake not letting the students know their statements would be redacted or is it the redaction itself? If it is the former, the district is missing the point. If it is the latter, it seems the district can take corrective action now. It can hand out stickers, inserts, or something to be placed in the yearbooks to correct the error. Since they don't suggest that correction, I wonder if they don't see the real mistake. If so, there is still a problem.
I suspect the district misread its cheat sheet on Supreme Court law. The Court decided a school newspaper case, Hazelwood v. Kuhlmeier, in 1988. In it, the Court held that the district could exercise editorial control over the school newspaper, reasoning that the newspaper was part of the school curriculum and represents school-sponsored speech. Thus, the school could exercise style and content control so long as its actions were related to "legitimate pedagogical concerns."
The Missouri school might think that the case fits because both newspapers and yearbooks are both school publications, but the school's concern with these boys' statements doesn't seem to have anything to do with pedagogical concerns of the sort recognized in Hazelwood. There, fact checking, balanced statements, mature subjects, confidentiality, and the like were all at play. Also, this section of the yearbook seems far more like an open forum than speech that might be construed as the school's. The school refers to "offensiveness," but that doesn't sound like pedagogy. Offensiveness falls under the Court's decision in Bethel v. Fraser, but there the speech was deemed to be lewd, vulgar, and plainly offensive. Applying this standard to the boys' yearbook statements is even more problematic. Even if I am wrong and they are offensive under some rationale, there is no way they are "plainly offensive."
Getting the law right is no easy thing for schools, so I don't mean to beat them up too much. But the difficulty of getting it right cannot be an excuse for a school to do whatever it wants and make it rationales and excuses after the fact.
Wednesday, July 5, 2017
The Fifth Circuit held last week that requiring that students perform the Mexican Pledge of Allegiance as an assignment for a Spanish language class, and the school's actions afterwards, did not violate the First Amendment. In Brinsdon v. McAllen Independent Sch. Dist., 15-40160 (5th Cir. 2017), a teacher required students to memorize and recite in Spanish the Mexican Pledge of Allegiance. A student, Brinsdon, objected to reciting the Mexican Pledge because she felt pledging allegiance to a foreign country was wrong. The student was allowed to substitute an alternative writing assignment, for which she received a "C" grade. Because students who did the recited the Mexican Pledge received "A"s, Brinsdon suspected that her grade was retaliatory. Brinsdon surreptitiously filmed her fellow students reciting the Mexican pledge in class, using a spy pen given to her by her father. The father then sent the filmed footage to media outlet The Blaze, which in turn posted the recording to YouTube. Brinsdon and her family were subsequently interviewed by Fox News and Glenn Beck, which brought national publicity to the school, much of it hostile. She was removed from Spanish class for the rest of the semester and completed the class assignments in the school office. Brinsdon, who graduated in 2014, filed suit in the Southern District of Texas, claiming that her First Amendment rights were violated when she was compelled to recite the pledge and that she was retaliated against when she was removed from class and that she suffered disparate treatment under the Equal Protection Clause when she was removed from class. The federal district court below allowed the equal protection and compelled speech claims to proceed to trial and later found granted the district a judgment as a matter of law. On appeal, the Fifth Circuit held that the school officials were entitled to qualified immunity as they did not ignore "clearly established law when compelling a non-operative recitation of the Mexican pledge." The court distinguished this case from West Virginia State Bd. of Educ. v. Barnette (1943), which rejected state law requiring daily recitation of the U.S. Pledge of Allegiance in class, by noting that Brinsdon's assignment did not require allegiance to Mexico or suppressed her ability to express her beliefs by adopting those of others. Simply put, the circuit court relied on Tinker v. Des Moines (1969) to permit schools to require recitation of alternative beliefs for "legitimate pedagogical reasons." Turning to the retaliation claims, the court determined that the timeline of Brinsdon's removal was unclear on the record, but the reason for the underlying disruption of school activities was not Brinsdon's media appearances, but the publication of the unauthorized video of the students, which is not a protected First Amendment right. The court also found that the teacher and principal were entitled to qualified immunity. The case is available here.
Wednesday, May 31, 2017
Judge Temporarily Blocks Student Suspensions in Racist Instagram Case, Highlighting the Need for Higher Court Guidance
This spring, students enrolled in the Albany, California, School District sent a racist instagram message. The message reportedly depicted African American classmates and the girl's basketball coach with nooses around their necks. The district took disciplinary action against the students, but also some students who had "liked" the message. Four of the students who liked the message filed a federal lawsuit, alleging that their behavior occurred off-campus and is protected by the First Amendment. The federal judge has now temporarily blocked the suspension of these students.
Tuesday, March 21, 2017
Court Upholds Prayer at School Board Meetings, Overlooking Their Judicial and Executive Functions That Suggest a Different Result
The Fifth Circuit Court of Appeals in American Humanist Association v. Birdville Independent School District has upheld a First Amendment challenge to student prayer at school board meetings. The court offered this summary of the facts:
BISD’s board holds monthly meetings in the District Administration Building, which is not located within a school. The meetings include sessions open to the public. Attendees are free to enter and leave at any time. Most attendees are adults, though students frequently attend school-board meetings to receive awards or for other reasons, such as brief performances by school bands and choirs. Since 1997, two students have opened each session—with one leading the Pledge of Allegiance and the Texas pledge and the other delivering some sort of statement, which can include an invocation. Those student presenters, typically either elementary- or middle-school students,2 are given one minute. BISD officials do not direct them on what to say but tell them to make sure their statements are relevant to school-board meetings and not obscene or otherwise inappropriate. At a number of meetings, the student speakers have presented poems or read secular statements. But according to AHA and Smith, they are usually an invocation in the form of a prayer, with speakers frequently referencing “Jesus” or “Christ.” AHA and Smith claim that sometimes the prayers are directed at the audience through the use of phrases such as “let us pray,” “stand for the prayer,” or “bow your heads.”
From 1997 through February 2015, the student-led presentations were called “invocations” and were delivered by students selected on merit. In March 2015, in an apparent response to AHA’s concerns about the invocations, BISD began referring to them as “student expressions” and providing disclaimers that the students’ statements do not reflect BISD’s views. BISD began randomly selecting, from a list of volunteers, the students who would deliver the expressions.
The court recognized that two different lines of precedent potentially controlled the case--one dealing with legislative prayer and the other with school prayer.
Like [the legislative precedent], this dispute is about the constitutionality of permitting religious invocations at the opening, ceremonial phase of a local deliberative body’s public meetings. But like [the school prayer cases], this case is about school-district-sanctioned invocations delivered by students on district property. We agree with the district court that “a school board is more like a legislature than a school classroom or event.”
The court also cited to other courts that had reached a similar conclusion in the past--Coles ex rel. Coles v. Cleveland Board of Education, 171 F.3d 369, 383 (6th Cir. 1999), and Doe v. Indian River School District, 653 F.3d 256 (3d Cir. 2011).
The court's mechanical analogies to legislative versus school prayer cases, however, overlooks the fact that school board meetings do not really fit into either category. The problem with pigeonholing school board meetings is that school board perform all three functions of government. When they debate and vote on school board policies, they operate as legislative bodies, just like a city council. In this context, Town of Greece v. Holloway held that can be permissible prayer.
In contrast, when a student appeals an expulsion to the school board, the board functions as an adjudicative body, much like a court (albeit under different rules). In a court setting, the mere posting of the Ten Commandments is unconstitutional, to say nothing of prayer. See McCreary County v. American Civil Liberties Union of Ky.
When school boards deal with business issues, such as hiring a superintendent, dealing with teacher issues, entering into contracts for services, they perform an executive function. Moreover, the school board is the employer of countless citizens who may feel that their positions would in some way be compromised depending on whether they participate in the religious ceremonies that precede school board meetings. In the carrying out executive functions, Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), indicates that even clever processes that allow students to make the decision regarding whether to lead prayer does not insulate a district from the limits of the First Amendment. In short, if the school sets up a process that leads to school sponsored prayer, it is unconstitutional.
This differing contexts suggest the question could be whether a different rule applies depending on what the business of the day is for the school board. Yet, this level of nuance is problematic because it would mean sometimes school boards can have prayer and sometimes they cannot. Clarity likely outweighs nuance here. The more sensible approach would be to ask whether the executive and adjudicative functions of school boards are substantial enough overall to subject school boards to the constitutional limits that apply to those functions.
Tuesday, March 14, 2017
The University of South Carolina School of Law is hosting a lecture by Robert Post, dean of Yale Law School, titled “Freedom of Speech and the Modern University. The lecture is March 23 at 5 p.m. Of course, South Carolina has faced its own challenges on the subject in recent years. Here is the announcement:
In February 2014, the University of South Carolina, USC Upstate, and the College of Charleston were at risk of losing state funding because of certain textbooks and courses. In 2016, two professors at Clemson University were among more than 200 across the nation who were put on the “Professor Watchlist,” which says it names instructors who “advance a radical agenda in lecture halls.” And more recently, faculty and staff at the College of Charleston have grappled with where the line between freedom of speech and being a respectful instructor blur.
After the 2016 election, the school’s provost and vice president of academic affairs, Brian McGee, reported several complaints from students who had “perceived that election discussions in a class meeting were not relevant to course content, were inappropriately one-sided, or were crudely partisan.” Following those reports, the school’s president, Glenn McConnell, enacted a new online presence that would “offer students a way to express their concerns, as well as provide faculty, staff, and administrators an excellent tool for improvement.”
But what startled faculty was the quickness at which the school had reacted to student’s complaints without stopping to check their validity. Professors wondered what role the complaints would play in the promotion and tenure of faculty. It also sparked a discussion state-wide about when and how to teach subjects that are innately political.
In a January article in the Charleston City Paper, Professor W. Scott Poole said, “In my class today, we are reading a section of a book that talks about the pro-Nazi ‘American First’ movement in the 1930s represented by Charles Lindbergh. I would be remiss as a teacher if I did not point out that this phrase was used in [President Trump’s Inaugural Address] as a kind of mantra. Is this crudely partisan or am I simply stating a historical fact for my students to then discuss and analyze?”
Put another way, if fact is couched as opinion, how does one teach without bias, and how does one learn without discrimination? In a deeply divided nation and an era of “alternative facts,” those types of questions are being asked even more frequently by students and professors alike.
For Post, the answers go all the way back to 1791, when the First Amendment was ratified. It created a culture that enjoyed and encouraged freedom of speech, and until the 1930s, courts had little to no role in protecting those rights. But as World War I began, judges had to rethink their role as freedom of speech transitioned into an “organized sway of public opinion.”
Post is an expert of constitutional law, First Amendment rights, legal history, and equal protection. Before his time as dean and professor at Yale Law, he taught at the University of California, Berkley School of Law. He has written and edited numerous books, including Citizens Divided: A Constitutional Theory of Campaign Finance Reform. Much of his knowledge has been learned over a career spent on college campuses, where discussions about freedom of speech frequently arise.
In his lecture, Post will explore the growth of the First Amendment from the perspective of the law, as well as practical application as an educator, and a student. He looks to examine the challenge between freedom of speech and freedom of expression, and why more than ever, free speech on college campuses should be preserved, allowing schools to exist as the “marketplace of ideas.”
The lecture is free and open to the public.
Monday, January 23, 2017
Somehow, every year the Freedom from Religion Foundation manages to find cases that, if the allege facts are accurate, boggle the mind because the obvious constitutional problems they raise. This year is no different. The organization just released this press release regarding what it claims is a 75-year old practice of Bible study classes at school. The press release offers this summary:
The Freedom From Religion Foundation has filed its first lawsuit of the year to end egregiously unconstitutional "Bible in the Schools" classes in Mercer County Schools, W.Va.
Joining FFRF as primary plaintiffs in the case filed on Jan. 18 are Jane Doe, an atheist and member of FFRF, and her child, Jamie Doe. FFRF and Jane Doe contend Jamie faces "an untenable choice" next year — whether to participate in unconstitutional bible indoctrination or face likely ostracism by conspicuously opting out.
The bible instruction, taught by itinerant teachers who possess "a degree in Bible," begins in first grade. Classes are held in 15 elementary schools, one intermediate school and three middle schools. The classes meet weekly and last 30 minutes in elementary schools and 45 minutes in middle schools.
The defendants are Mercer County Board of Education, Mercer County Schools, and Superintendent Deborah S. Akers.
Bible indoctrination classes have been taught in Mercer County Schools for more than 75 years. Between 1939 and 1985, the bible classes were designed, financed, administered and staffed by a small group of Mercer County citizens. Following complaints by parents of eight students in 1985, the Mercer County schools took over the instruction in 1986, claiming to follow nine guidelines from the Office of the Attorney General.
Financing is provided by the "Bluefield Bible Study Fund, Inc.," which operates a fund to pay bible teachers to instruct about 4,000 students. Bible teachers must follow lesson plans almost without deviation. There are 70 to 90 visuals used in each lesson. Lessons have included images of Jesus being tortured, nailed to the cross, and ascending into heaven.
The curriculum is the equivalent of sectarian Sunday school instruction. Goals include developing a "positive attitude" toward biblical literature, "understanding the importance of the Ten Commandments," and "harmonizing the four gospel accounts of the last days of Jesus."
FFRF's legal complaint lists examples of the proselytizing curriculum. Lesson 2 promotes creationism by claiming humans and dinosaurs co-existed. Students are asked to "picture Adam being able to crawl up on the back of a dinosaur! He and Eve could have their own personal water slide! Wouldn't that be so wild!"
Lesson 6 exhorts students to follow the Ten Commandments and to "have no other god than the Lord God!" Lesson 25 indoctrinates young students in the core narrative of Christianity — the alleged crucifixion and resurrection of Jesus.
FFRF Co-President Annie Laurie Gaylor notes: "The U.S. Supreme Court ruled such religious instruction unconstitutional more than 65 years ago, in the landmark McCollum v. Board of Education. It's unacceptable that such clearly unconstitutional indoctrination is still being conducted in any public schools." FFRF won a court victory before the 6th U.S. Circuit Court of Appeals ending similar bible instruction in Rhea County (Dayton), Tenn., schools in 2004.
Mercer County, whose county seat is Princeton, has a population of about 63,000.
FFRF v. Mercer County Board of Education was filed on Jan. 18 in the U.S. District Court in the Southern District of West Virginia, with Marc Schneider serving as primary litigating attorney and FFRF Staff Attorney Patrick Elliott as co-counsel. FFRF thanks FFRF extern Chris Line for his research and preparation of the complaint.
Get the complaint here.
Monday, September 12, 2016
Second Circuit Dismisses Student-Plaintiffs' Suit That Claimed Taxpayer Money Was Diverted To Fund Private Religious Schools
A divided Second Circuit held today that student-plaintiffs in the East Ramapo (N.Y.) School District lacked standing to challenge the alleged diversion of public funds to religious institutions in their district. In Montesa, et al. v. Schwartz, et al., taxpayer and student plaintiffs alleged that school board members of the East Ramapo School District had an under the table agreement to allow Orthodox/Hasidic Jewish parents to invoke the Individuals with Disabilities Education Act to have their children placed in largely Hasidic schools. The parents did this, the plaintiffs claimed, by simply writing a letter to the school board disagreeing with the placement of their children in the public schools. School board members would then pass a private placement resolution in lieu of an Impartial Hearing under the IDEA and reimburse the parents for the private religious school tuition. One problem with this, the plaintiffs argued, was that the school district would not be entitled to federal or state reimbursement for these students because the settlements occurred before an Impartial Hearing under the IDEA. The plaintiffs alleged that the school board defendants thus diverted funds away from the district's public schools and into Hasidic religious institutions. In today's decision, the Second Circuit held that the student‐plaintiffs lacked standing to assert an Establishment Clause claim because they were only indirectly affected by the conduct alleged to violate the Establishment Clause. The circuit court, which upheld the district court ruling, found that the students were not directly exposed "to the unconstitutional establishment of religion.” A taxpayer suit on similar grounds is proceeding in federal district court. The opinion is here.
Monday, August 15, 2016
First, let me say that that what I have learned about Joseph Kennedy, an assistant football coach at a public high school in Bremerton, Washington, is mostly from second-hand reporting. His story has burned up the the internet and airways with hard line positions on both sides, so much so that finding primary reporting is hard.
Here are what I understand to be the facts. For the past several years, Mr. Kennedy has engaged in religious exercises, apparently before and after games. Before games, he prayed. After games, he prayed and/or offered some sort of religious "inspirational talk" at mid-field. Sometime in the last year, the school district sent him a letter telling him to stop. Kennedy is said to have continued his activities in defiance. It is my understanding that he was fired.
When the Liberty Institute learned of this, it came to his defense indicating it would sue the school district for religious discrimination. Since then, politicians, both local and national, have gotten into the fracas. According to the Seattle Times, forty-seven members of Congress sent a letter in support of Kennedy. He has apparently now filed his lawsuit, giving the story legs again.
Once one cuts through the rhetoric, it seems to be that this case boils down to a few key facts. First, was Kennedy, in fact, leading a prayer before games? The law is clear that the state cannot lead religious exercises or direct others to do so. The assistant football coach is a state actor. Thus, he cannot lead students in a prayer.
Tuesday, June 14, 2016
Federal Court Refuses to Expand School Voucher Program That Was Declared Unconstitutional By Colorado Supreme Court A Year Ago
Almost a year after the Colorado Supreme Court declared that a district's school voucher program violated the state constitution's separation of church and state doctrine (which Derek discussed here), a federal district court in Colorado denied a renewed attempt last week to force the Douglas County (CO) School District School Choice Grant Program to include religious schools, according to the Denver Post. The federal court questioned whether the plaintiffs, represented by the religious-freedom organization Institute for Justice, were in a truly adversarial position with the defendant, the Douglas County School District. The federal court also questioned whether the plaintiffs could show a likelihood of success to warrant an emergency injunction. The court also stated that the Douglas County families seeking the voucher expansion could not show irreparable harm because only a few students had even shown interest in the program and no schools have yet agreed to participate in the School Choice Grant Program. The ACLU of Colorado and law firm Arnold & Porter have moved to intervene in the case, arguing that the plaintiffs’ motion for preliminary injunction is essentially a collateral attack on the Colorado Supreme Court's judgment.
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.