Thursday, November 19, 2015
Addressing a first-year class at Georgetown University Law Center a few days ago, United States Supreme Court Justice Antonin Scalia shared his view that there is no fundamental Constitutional right of a parent to direct the education and upbringing of their children. This is not to say, however, that Supreme Court precedent does not protect such a right. In 1925 in Pierce v. Society of Sisters, the Court struck down an Oregon law requiring all children to attend public school. The Court indicated that, in not affording a parent the option of sending their child to a private school, the law “unreasonably interfere[ed] with liberty of parents and guardians to direct the upbringing and education of children under their control.”
Scalia’s rejection of such a right is based on his opposition to the use of substantive due process to enumerate rights. Because a parental right is “simply not in the Constitution,” Scalia says he “will not enforce it from the bench.” Consistent with his comments, Scalia dissented in Troxel v. Granville, a case dealing with third party visitation rights with children. There, Scalia reasoned that although the parental right to control the upbringing of their child is an inalienable right stated in the Declaration of Independence, the Constitution does not grant judges the right to rule on state laws that may interfere with a parental right.
Scalia’s reasoning is tied up in anti-Lochner reasoning. As some may painfully remember, the Lochner Era refers to Supreme Court decisions between 1897 and 1937 in which the Court aggressively curtailed government regulation of private industry, including the minimum wage, labor rights, and workplace safety. The Court struck down this regulation by reasoning that individuals have a fundamental liberty interest to engage in contract and that these regulations interfered with the right—i.e. an individual should be able to contract to work under any conditions that he is willing to accept. Pierce and a few other parental cases were decided during the Lochner Era. These cases were predicated on the notion that the government was interfering with the parents’ right to enter into a contract for education services.
This fundamental right to contract worked any number of mischiefs and was later repudiated, leaving cases like Pierce in doubt. In fact, much of modern jurisprudence is premised on not ever going back to the type of judicial activism and inconsistency we say during the Lochner Era. In that respect, Justice Scalia may be on firm ground. But the theory of the right to control the upbringing of one’s children has since been integrated into First Amendment doctrine of freedom of religion and speech. Pierce, for instance, could have just as easily been decided on freedom of religion grounds as freedom of contract. Freedom of religion is, of course, explicitly in the Constitution. I am a little surprised (or not) that Scalia would dismiss that reality.
Unfortunately, while incorporated into religion and speech, parental rights in education have grown increasingly complex in recent years. Catherine Ross offers a nice overview at 18 Wm. & Mary Bill of Rts. J. 991 (2010).
Monday, November 9, 2015
A new report by the Council on American-Islamic Relations (CAIR) finds that Muslim students experience high rates of bullying and discrimination in California's public schools. Among other things, the report calls on Congress to amend Title VI to include a prohibition on religious discrimination. While the CAIR is correct that Title VI does not prohibit religious discrimination, it is not always clear whether the discrimination against Muslim students is ethnic or religious discrimination. The Office for Civil Rights has tended to treat it as ethnic discrimination, which Title VI would prohibit. Regardless, the report's empirical findings are troubling:
Ultimately 55% of the American Muslim students surveyed reported being subjected to some form of bullying based on their religious identity. This is twice as high as the national statistic of students reporting being bullied at school. Many students experienced multiple types of bullying; however, the most common type of bullying American Muslim students faced was verbal at 52%.
CAIR-CA also considered gender-based differences in survey responses. Remarkably, more male students reported experiencing bullying. However, the percentage of females who reported experiencing discrimination by a teacher or administrator was slightly higher. Of the female respondents who wear a hijab, the Islamic headscarf, 29% reported being offensively touched by another student, and 27% reported being discriminated by their teacher.
There were also two key findings in the students’ responses to questions about their feelings regarding their school environment. The percentage of students who reported feeling that they were comfortable participating in class discussions about Islam or countries where Muslims live decreased 4 by 4 percentage points, from 80% in 2012 to 76% in 2014. Moreover, only 67% of students felt teachers and administrators were responsive to their religious accommodation requests. American Muslim youth continue to identify student-teacher relations as needing improvement. Many students’ comments referenced increased problems in the classroom during discussions about 9/11, mainly due to teachers either failing to address harassment by other students against Muslim students or discriminating against Muslim students themselves.
Tuesday, October 13, 2015
Last August I posted an announcement from the First Amendment Law Review (FALR) here at the University of North Carolina School of Law for submissions for brief but engaging articles related to free speech in higher education. They have now extended the deadline until January 8, 2016. Borrowing now from the announcement in August:
Tuesday, September 29, 2015
School Speech Shorts: School District Employees Entitled to Qualified Immunity in Facebook Search Suit; Univ. of Kansas Cannot Expel Student for Off-Campus Tweets
The Fifth Circuit recently reversed a district court's decision denying qualified immunity to officials of a Mississippi school district on a First Amendment claim. The case arose when a teacher in the Pearl Public Schools, who served as the school's cheer squad sponsor, coercively requested a student's Facebook log-in information, accessed her Facebook messages, and later punished the student by removing her from the cheer squad because of the messages' content. After the student was dismissed from the squad, her parents filed a § 1983 action alleging that school officials violated their daughter's First and Fourth Amendment rights by searching her messages. The Fifth Circuit held that the school officials were entitled to qualified immunity because the law was not “clearly established” when the incident occurred (September 2007) that searching a student's Internet messages would violate either the First or Fourth Amendments if the teacher was acting on a reasonable suspicion that that the student had posted threatening messages immediately after a school event. The finding of qualified immunity was compelled, the Fifth Circuit explained, by conflicting rulings in school search cases until the Supreme Court handed down Safford Unified Sch. Dist. No. 1 v. Redding in 2009. The circuit court likewise held that school officials had qualified immunity on the First Amendment claim, because they did not have "fair warning," given the available precedent, that removing the student from the cheer squad because the content of her Facebook messages would violate the First Amendment. Read the opinion in Jackson v. Ladner, No. 13-60631 (5th Cir. Sept. 15, 2015) here.
A Kansas appellate court held last week that University of Kansas had no authority to expel a student for posting sexually harassing tweets about another student even though the university had ordered him not to contact the other student. The harassing communications were done off-campus, and construing the University's student code, the court concluded that the "only environment the University can control is on campus or at University sponsored or supervised events." The case is Yeasin v. Univ. of Kansas, No. 113,098 (Kan. App. Sept. 25, 2015).
Wednesday, September 16, 2015
The Third Circuit recently upheld a summary judgment finding in a teacher’s retaliation claim after she was discharged after her derogatory comments about students gained national attention. The Third Circuit held that while the teacher’s speech may have touched on a matter of national concern, it caused sufficient disruption for the students and the school district to warrant the teacher’s discharge, and thus speech was not protected under Pickering v. Board of Education. The case arose when a teacher for a Pennsylvania school district, Natalie Munroe, began a blog entitled "Where are we going, and why are we in this hand basket?" In the blog, Munroe discussed personal matters but also complained about her students, her co-workers, and the school where she worked. She did not expressly identify either where she worked or lived, the name of the school where she taught, or the names of her students, but described students as the “devil’s spawn,” and “rat-like.” Students and the school district discovered the blog, and after complaints about Munroe’s professionalism, the school district assigned a “shadow teacher” to teach Munroe’s subject at the same times that Munroe did and allowed students to opt-out of Munroe’s class. Munroe meanwhile became a minor celebrity in the national media because of the views expressed on the blog. Eventually, the school district discharged Munroe, and she brought a retaliation claim under 42 U.S.C. § 1983, alleging that the district violated her First Amendment rights. She claimed that her termination based on her private blog and her media interviews. The Third Circuit found that Munroe’s national media interviews did not rise to the level of constitutionally protected expression, finding that “Munroe’s various expressions of hostility and disgust against her students would disrupt her duties as a high school teacher and the functioning of the School District.” The Third Circuit concluded that the district’s interest in eliminating Munroe’s disruptive speech and presence outweighed her “interest, as well as the interest of the public, in her speech.” Munroe v. Central Bucks School District, No. 14-3509 (3d Cir. Sept. 2015) is here.
Free speech and academic freedom have long exposed cultural and political tensions on college campuses. But in the past few years, those who would restrict free speech have seemingly gotten a foothold in the debate that they otherwise would have been laughed out of. In other words, they have managed to start a debate over long settled principles. They have been able to convince some universities and professors to include warnings or triggers on their syllabi. These triggers would warn students in advance about topics, books, and issues that they might find objectionable or offensive. Some students have even managed to get themselves exempted from certain readings and assigned alternatives. Some have complained to their legislators about being exposed to ideas they did not like and managed to get them to punish public universities by defunding certain programs. Some have gotten invited speakers uninvited because they were too controversial.
They now seem to have gotten the attention of presidential hopeful, Ben Carson, who appears to be taking up their cause. Speaking of his policy proposals for the Department of Education, he said: “I think the Department of Education should monitor institutions of higher education for political bias and withhold federal funding if it exists,” Carson told Las Vegas radio host Heidi Harris. Of course, political bias is not confined to one party, but the notion that a politician, rather than an academic, would be the arbiter of political bias is problematic to say the least, particularly if that politician comes from a party that has tended to resist things like the expansion of civil rights, the protection of free speech, and the calls for politically correct discourse.
Interestingly, President Obama jumped into the conversation this week. At a town hall meeting, he pushed back against Carson and the censorship occurring on campuses. In response to Carson, he said:
Tuesday, August 25, 2015
In 2012, Arizona law enacted legislation providing that “no school district or charter school in this state may endorse or provide financial or instructional program support to any program that does not present childbirth and adoption as preferred options to elective abortion.” This fall a sticker on the front of a biology textbook that promotes that agenda is raising eyebrows. Gilbert Unified School District placed this message on it biology textbooks:
The Gilbert Public School District supports the state of Arizona’s strong interest in promoting childbirth and adoption over elective abortion. The District is also in support of promoting abstinence as the most effective way to eliminate the potential for unwanted pregnancy and sexually transmitted diseases. If you have questions concerning sexual intercourse, contraceptives, pregnancy, adoption or abortion, we encourage you to speak with your parents.
The same group that pushed for this sticker was part of the push for the anti-gay legislation that made national news in Indiana, which brings us to anti-gay sex education in South Carolina.
Monday, August 24, 2015
Earlier this summer, California eliminated religious exemptions from school vaccinations, making it only the third state to do so. In my previous post on the legislation, I noted that on its face it might raise freedom of religion concerns, but one close examination it probably need only pass rational basis review. Dorit Rubinstein Reiss has posted a new article on ssrn, Vaccines, School Mandates, and California's Right to Education, that offers a much deeper analysis. The abstract offers this summary:
California recently enacted Senate Bill 277, which abolishes the personal-beliefs exemption to school immunization requirements. One possible challenge to the law’s constitutionality is that it impermissibly limits the right to education. This Essay rebuts such positions. California’s jurisprudence regarding access to education applies to protected categories; it does not limit the ability of the state to impose health and safety regulations such as immunization requirements. Moreover, the requirement would withstand even strict scrutiny, if applied, because disease prevention in the school context is a compelling interest and there is no alternative that is as effective. Finally, the law actually protects the right of access to education for those whose parents do not have the luxury of choice, such as immune-compromised children, while still reasonably preserving parental choice overall.
Wednesday, August 19, 2015
A growing number of reports reveal that schools are starting to more systematically monitor their students' social media. The most recent report is from Orange County in Florida, where the school district has purchased software that allows it to do keyword searches across multiple social media platforms for all students. Some have raise privacy concerns about this trend. Orange County, at least, does not appear to be crossing any privacy lines because it is only monitoring public posts. They are not attempting to gather students' passwords or anything of the like. The software simply allows the district to achieve efficiently what any other person with an internet connection could, if the person just had the time and energy to sift through everything.
The more important issues are what exactly districts do with this information. First, sometimes too much information is a bad thing. Consider the student who simply complains about his teacher online--something students have been doing in hallways, in cafeterias, on telephones, and in handwritten notes since forever. That information has had a very short shelf-life and rarely made it to the subjects of the complaints. It would be a bad thing if now that information got passed along. The likelihood that it could interfere with relationships is significant, while the harm that sharing that information would ward off is almost non-existent.
Friday, August 7, 2015
LaJuana recently posted on the Texas truancy reform legislation when it was enacted. Josh Gupta-Kagan followed up on the legislation and tipped me to an interesting detail regarding mandatory school attendance. The legislation raised the drop out age from 18 to 19. This move is also coincides with recent changes to compulsory attendance in Kentucky. The move to reduce dropout nationwide makes obvious sense, but it is not as simple as one might think.
Tuesday, July 28, 2015
A settlement has been reached in Barnes v. Zaccari, the long-running case in which a Valdosta State University (Ga.) student was expelled in 2007 after he protested the VSU president's plans to build a new parking deck. After a letter-writing campaign opposing the environmental impact of VSU's parking deck plans, student Thomas Barnes posted a collage on his Facebook page titled “S.A.V.E.—Zaccari Memorial Parking Garage” that included a portrait of then-VSU President Ronald Zaccari. (A copy of the collage can be found here.) Zaccari interpreted the word "memorial" to apply to deceased persons, therefore signaling that Barnes contemplated harm to him. He ordered that Barnes be "administratively withdrawn" from VSU because Barnes presented a “clear and present danger” to the campus. Barnes sued Zaccari in federal court, claiming violations of his due process and free speech rights. The district court denied Zaccari's summary judgment motion based on qualified immunity. A federal district court denied Barnes' First Amendment retaliation claim, finding that because it was pled as a conspiracy claim and VSU's administrators opposed Zaccari's actions, there was no agreement to form a conspiracy. In 2013, a federal jury found the collage was innocuous expression, finding Zaccari personally liable for $50,000 for violating Barnes's rights. In January 2015, the Eleventh Circuit held that the district court erred in granting summary judgment in Zaccari's favor on the First Amendment retaliation claim. Barnes v. Zaccari, 592 Fed.Appx. 859 (11th Cir. 2015). VSU apparently has decided that it is done fighting the case. Read more about the settlement at the Foundation for Individual Rights in Education here.
Monday, July 20, 2015
Court Holds Arizona's Ban on Ethnic Studies Violates First Amendment and Remands for Further Findings on Discrimination
The Ninth Circuit has issued its decision in Arce v. Huppenthal. The case arises out of the 2010 ban on Mexican American Studies programs in Arizona. The legislature passed A.R.S. § 15-112(A), which prohibits school districts and charter schools from having educational programs that: (1) “Promote the overthrow of the United States government,” (2) “Promote resentment toward a race or class of people,” (3) “Are designed primarily for pupils of a particular ethnic group,” or (4) “Advocate ethnic solidarity instead of the treatment of pupils as individuals.”
The Ninth Circuit held that § 15-112(A)(3) violates the First Amendment due to overbreadth, but held that §§ 15-112(A)(2) and (A)(4) were constitutional. The trickier analysis in regard to plaintiffs' motivations. Plaintiffs' alleged that the legislation was racially or ethinically motivated and motivated by viewpoint discrimination. The former would violate the Fourteenth Amendment and the latter the First Amendment. The district court had granted the defendant's motion for summary judgment on the the equal protection and view point discrimination claims. The Ninth Circuit reversed and remanded, finding there were "genuine issues of fact regarding whether the enactment and/or enforcement of § 15-112 was motivated at least in part by a discriminatory intent." The court noted it is undisputed that “the statute was enacted almost entirely” to shut down the Mexican American Studies program in Tuscon.
Friday, July 3, 2015
On Tuesday, California Governor Jerry Brown signed legislation eliminating personal and religious belief exemptions from public school vaccinations. The new law makes California's vaccination law one of the most stringent laws in the country. The new law, taking effect January 1, 2016, mandates all children provide proof of vaccination for communicable diseases in order to attend school in California. The only exemptions are for medical reasons and must be approved by the State Department of Health.
California is only the third state to eliminate religious and personal belief exemptions for vaccinations. The legislation comes in the aftermath of a measles outbreak linked to Disneyland in California earlier this year. Supporters of the new law advocate that it will protect those children too young or sick to be vaccinated, while opponents of the law say it unfairly restricts parental choice.
Wednesday, July 1, 2015
On Monday, the Supreme Court of Colorado in Taxpayers for Public Education v. Douglas County School District struck down a voucher program in Douglas County, finding that the Choice Scholarship Pilot Program violated separation of church and state doctrine under the state's constitution. The ruling reversed the decision in Taxpayers for Public Education v. Douglas County School District, a 2013 Colorado Court of Appeals decision upholding Douglas County’s voucher program.
The voucher program awarded taxpayer money to students who could use that money to pay for private schools, including some religious schools. The court found that, in doing so, the voucher program facilitated students attending religious schools and amounted to aid of religious institutions. This violates the state constitutional provision that prohibits government aid to “any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school ... controlled by any church or sectarian denomination.” The Supreme Court of Colorado remanded the case, directing the lower courts to reinstate an order permanently enjoining the program.
This holding based on state law is, of course, in contrast to the U.S. Supreme Court holding in Zelman v. Simmons-Harris. There the Court held that voucher program in Cleveland, Ohio, did not violate the First Amendment, notwithstanding the fact that the program almost exclusively sent kids to private religious school. Many state constitutions have provision that are more restrictive of the flow of public money to religious institutions.
Thursday, June 25, 2015
The Foundation for Individual Rights in Education has released it annual report on the state of free speech on college and university campuses. The Foundation examined 437 schools and "found that more than 55 percent maintain severely restrictive, 'red light' speech codes—policies that clearly and substantially prohibit protected speech. Last year, that figure stood at 58.6 percent; this is the seventh year in a row that the percentage of schools maintaining such policies has declined." Only five percent of schools, however, actually affirmatively protect speech.
One of the worst offenders was Missouri, where "over 85 percent of schools surveyed received a red light rating." Virginia and Indiana were among the best, with "only 31 percent and 25 percent of schools surveyed . . .receiv[ing] a red light rating." The Foundation attributes Virginia's numbers to recent legislation "designating outdoor areas on the Commonwealth’s public college campuses as public forums. Under the law, Virginia’s public universities are prohibited from limiting student expression to tiny 'free speech zones' or subjecting students’ expressive activities to unreasonable registration requirements."
Monday, June 1, 2015
Federal District Court Overturns School Policy Allowing Distribution Of Only Student-Written Literature
The Western District Court of Washington overturned a student's suspension on Friday for preaching and distributing Christian literature, the Pacific Justice Institute reports. Cribbing from the Institute's press release: Plaintiff Michael Leal is a senior at Cascade High School, part of the Everett Public Schools system. Leal violated the school district policy several times by preaching and passing out religious materials about his Christian faith to fellow students during the school day. The district's policy limited passing out such materials to times before or after the school day at school building entrances or with permission from school administrators. The district also required that this literature be written or produced by a student. Leal was disciplined and threatened with expulsion for repeatedly violating the policy. The federal district court had stated earlier in the case that the district's time, place, and manner restrictions on such speech were appropriate but was "troubled" by that part of the policy that prohibited students from passing out materials that were not written by students. According to the Institute's report, the district court decided that part of the policy could not stand. The case is Leal v. Everett Pub. Sch., No. 2:14-CV-01762 TSZ, 2015 WL 728651 (W.D. Wash. 2015).
Tuesday, May 26, 2015
A federal court in South Carolina recently found that a school district’s practice of including Christian prayers at elementary school graduation ceremonies violated the Establishment Clause, but approved a revised policy that allows student-initiated prayer at school events if the student is selected to speak based on “neutral criteria such as class rank or academic merit.” The plaintiffs, parents of an elementary student in the district joined by the American Humanist Society, challenged the Greenville County School District’s practice of having graduation ceremonies at a college chapel at which prayer opened and closed the event. (The claim about the location of the event was dismissed earlier.) The court found that the district’s new policy allowing students to initiate prayer did not contravene the Supreme Court’s First Amendment holdings because the district’s revised policy “simply refuses to preemptively restrain a certain type of message, namely religious,” as opposed to dictating when private religious speech would be allowed during school events. The case, American Humanist Assoc. v. South Carolina Dept. of Ed., is available here.
Thursday, May 7, 2015
The U.S. District Court for the District of Oregon recently ruled that a school violated a student's free speech rights when it suspended him for posting on Facebook post that his teacher "needs to be shot." The eighth grade student was angry because his parents grounded him after he got a C in her class. The court wrote that the off-campus post post was unlikely to "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the required showing under Tinker v. Des Moines Indep. Cmty. Sch. Dist. The student's post did not announce a specific plan, and the school's choice of discipline, a three-day in school suspension, further convinced the district court that school officials did not take the comments seriously. Although the teacher was apprehensive about the student returning to school, she accepted the school's decision to let the student return. The district court distinguished a 2013 Ninth Circuit case, Wynar v. Douglas Co. Sch. Dist., which upheld a school suspension of a student for his threatening social media post because he detailed plans that targeted specific students. Read the district court's opinion in Burge v. Colton School Dist. 53 here.
Monday, April 27, 2015
On Friday, the U.S. Department of Education’s Office for Civil Rights new Title IX guidance. It emphasizes the responsibility of school districts, colleges and universities to designate a Title IX coordinator. It also offers an overview of Title IX's requirements in regard to single-sex education, sex-based harassment, and discipline. The press release is as follows:
Tuesday, April 14, 2015
On April 2, the school nurse at Pennsylvania's Carlisle Area School District purportedly "berated, humiliated, and otherwise mistreated" a student for opting out of the Pledge of Allegiance. The nurse purportedly threatened to not serve the student. This type of coercion is clearly prohibited under the Supreme Court's decision in West Virginia v. Barnette. The American Humanist Society has filed a letter of complaint on the student's behalf. Unfortunately, the is more conformation of my musings last week that action that is plainly prohibited by First Amendment precedent may be more normative in schools than we might otherwise imagine. More on the current story here.