Tuesday, March 25, 2014
Yesterday, I had the opportunity to debate Richard Duncan in a Federalist Society forum on school choice. In my naivete, I had assumed the point of the debate was academic. Halfway through it, I felt compelled to point out to the audience that his arguments about religious freedom had moved well beyond constitutional doctrine or sound educational policy. Rather, he was forwarding a political argument masquerading as a constitutional claim. I revel in a good political debate as much as anyone else and said I welcomed a political debate, in which everyone would be entitled to their opinion, but the same is not necessarily true in regard to the constitutional and educational policy claims because there are certain baseline facts and doctrines beyond dispute there.
Nevertheless, I left the debate thinking our conversation was limited to a causal Monday afternoon luncheon. Today, my naivete was exemplified again. Stephanie Simon, of Politico, reports that taxpayers are increasingly bankrolling the tuition of students attending private religious schools. The current total investment in just 14 states is nearly $1 billion a year. Since 2010, those numbers are up 30 percent. Twenty-six additional states are considering measures that would add to this growth. I knew we had seen an uptick in recent years, but not this much. This rapid growth is being fueled by political lobbies. One pro-voucher group, the American Federation for Children, has spent $18 million on these campaigns since 2007.
Of course, this movement is not new. James Foreman's article, The Rise and Fall of School Vouchers: A Story of Religion, Race and Politics, 54 UCLA L. REV. 547 (2007), details how religious advocates for vouchers drew on inner city communities' interest in escaping failing schools to secularize their voucher claims, and how the Supreme Court then sanctioned it. But as charters became more readily available, inner city communities' interest in vouchers fizzled somewhat and, with it, the necessary political support to pass legislation. What is interesting in this new round of advocacy is that since the Court has sanctioned vouchers that place students in religious schools (because the overall program is non-discriminatory and the purported purpose secular), voucher advocates appear more willing to assert religious freedom, if not entitlement, as the basis for expanding voucher programs. They claim the state is discriminating against them if it does not provide them with vouchers. Current doctrine, of course, does not support such a claim. But pushing back against this claim requires that one sees it for what it is: a political claim. Moreover, it may not even be the politics of religion pushing it, but the politics of privatization, which use religious and minority interests as window dressing for a larger agenda.
Friday, March 14, 2014
The following is a cross-post, curtesy of Scott Bauries at edjurist.com. Thanks Scott.
Imagine that you are an educational leader hired to head up an important community college program for at-risk youth. In your first days on the job, you do what any good leader does and audit the books. Through this review, you discover that you have an employee who is drawing a large salary from the program, but is not doing much, if any, work. You do some further digging, and you realize that this "employee" with the "no-show" job is also a sitting state legislator. You care about your fiduciary duty over the public money you've been entrusted, so you confront the no-show employee and request that she begin showing up and working. She not only refuses, but also threatens your livelihood. You are not a coward, so you fire her. Not only that, but when subpoenaed, you testify truthfully against her in her criminal trial once the feds discover her fraud. Soon after, you are fired.
You file suit against your former employer to challenge your termination as retaliation for your speech as a citizen on a matter of public concern. But the District Court, and later the Circuit Court of Appeals, reject your challenge, citing the Suprme Court's recent decision in Garcetti v. Ceballos. In Garcetti, the Court held that, "when public employees speak pursuant to their official duties, they do not speak as citizens, and the First Amendment does not shield their communications from employer discipline." Essentially, speech that a public employee is hired to make is not that employee's own speech, but his work product, and may therefore be the basis of employer discipline. The Circuit Court cites Garcetti and reasons that, because you testified only about matters you learned about at work, your testimonial speech "owe[d] its existence" to your employment, and was therefore made "pursuant to [your] official duties." Notwithstanding the Garcetti rule, the Circuit Court proclaims that it is immaterial that your job does not require you to testify in judicial proceedings, as long as your testimony is about your job.
Should this judicial sleight-of-hand resulting in an unbelievably expansive reading of the Garcetti exemption be allowed to stand? In Lane v. Franks, the Court will consider the question on alleged facts similar to those in the vignette above. Along with Professors Paul Secunda and Sheldon Nahmod, and on behalf of more than 60 other law professors, I have written an amicus brief (free download) arguing for the reversal of the 11th Circuit's flawed reading of Garcetti. The case will be argued on April 28th, and it could have major implications for public employees--including educational employees--nationwide.
Friday, March 7, 2014
One of our recent posts noted the publication of R. George Wright's article, Post-Tinker, 10 Stan. J. Civ. Rts. & Civ. Liberties 1 (January 2014). Considering one of Professor Wright's points-- that we could dispense with Tinker in favor of allowing public schools' to control student speech based on (in part) their responsibility to teach civility and mutual forbearance-- a recent Ninth Circuit case might present a question of if wearing an American flag t-shirt is a breach of civility? In Dariano v. Morgan Hill Unified Sch. Dist., the Ninth Circuit upheld a school official's decision to require high school students wearing t-shirts bearing images of the American flag during a school-sanctioned celebration of Cinco de Mayo to turn the shirts inside out or go home after the school principal learned of threats of violence against the students. During a Northern California school's Cinco de Mayo day, several students wore American flag t-shirts to school, prompting comments from other students who viewed the students' shirts as a slight against Mexicans and Mexican-Americans. A year earlier, there had been threats and obscenities exchanged between a group of predominantly Caucasian students and a group of Latino students when the Caucasian students hung an American flag on a school tree and chanted “USA,” in response to a group of students who had been walking around with a Mexican flag. The day of the flag t-shirt incident a year later, an assistant principal was told that some students were expressing displeasure about the American flag t-shirts. The assistant principal met with the students wearing the U.S. flag shirts and asked them to turn the shirts inside out or remove them, explaining that he was concerned that they may be attacked by students who supported the Cinco de Mayo celebration. The students acknowledged that the shirts might start fights, but refused to take them off. They were sent home with excused absences and stayed home two additional days after receiving threatening text messages. (Two other students were allowed to return to class because the shirts because they were wearing "TapouT," shirts that had a muted version of the U.S. flag.) The students who were sent home sued, alleging that the school violated their rights to freedom of expression, equal protection, and due process. In upholding the district court's grant of summary judgment for the assistant principal, the Ninth Circuit found that given the history of violence at the school, the school officials stopping the display of the t-shirts was a "tailored response" to "anticipated violence or substantial disruption of or material interference with school activities," and therefore the school's response was justified under Tinker. The Ninth Circuit found that the school's response was appropriately tailored under Tinker because while it suppressed the message on the clothing, they students were not punished for it and also allowed students wearing clothing with a less prominent message to wear their shirts. Read Dariano v. Morgan Hill Unified Sch. Dist. here.
Tuesday, February 25, 2014
R. George Wright's article, Post-Tinker, is now available at 10 Stan. J. Civ. Rts. & Civ. Liberties 1 (January 2014). The article argues that
the rise of computer communication by means of portable technologies [does not] necessarily condemn Tinker to irrelevance. It has recently been argued, for example, that "Tinker remains functional, and if properly applied to students' online expression, it can vindicate students' free expression interests while still allowing schools to properly regulate day-to-day student discipline and the educational process." And when we add in the options of modifying Tinker, as by abandoning either the first "disruption" prong or else the second "rights of others" prong, contemporary support for some version of Tinker is even broader.
At this point, however, it is fair, and indeed important, to ask about the likely consequences of radically abandoning Tinker. What might it mean, at this historical point, to abandon Tinker along with its qualifying and limiting cases? The discussion below pursues this question and eventually endorses just such a radical abandonment of Tinker. This is not an anti-student speech conclusion. It is instead a recognition of the importance of allowing public schools, if they so choose and within other constitutional and statutory bounds, to focus more on educational outcomes, equality, or other dimensions of the vital basic mission of contemporary public schools.
Tuesday, February 11, 2014
In Indiana, Establishment Clause questions are being renewed this week about private schools that receive public funds doing what public schools cannot: teaching Christian-based intelligent design doctrine and creationism with taxpayer-funded vouchers. Indiana's South Bend Tribune reports that the state's Choice Scholarship Program funds nearly 20,000 students to attend private schools with about $81 million of public voucher funds. Some of those private schools expressly state that they do not teach evolution as part of their curriculum, substituting faith-based texts for reading, history, and science classes. A recent article in Slate shows the growing amount of tax-credit scholarship and voucher programs going to schools that teach creationism as an alternative to evolution. Indiana's Choice Scholarship Program has not been challenged under the First Amendment's Establishment Clause, although the Indiana Supreme Court ruled last year that the Choice Program did not violate the state constitutional probihibition against funding religious institutions because the direct beneficiaries of the program were schoolchildren rather than the schools selected, and the state clause did not exclude religious teaching from public schools. Meredith v. Pence, 984 N.E.2d 1213 (Ind. 2013). Meredith's lawsuit challenged the state's voucher system generally (Indiana now has one of the most expansive voucher systems in the country), but Establishment Clause challenges could be coming.
Thursday, February 6, 2014
In August 2012, the Fourth Circuit Court of Appeals in Moss v. Spartanburg County School District Seven, 683 F.3d 599, (2012), held that a South Carolina statute that allowed public schools to give public school credit for private religious instruction did not violate the First Amendment’s prohibition of establishment of religion. The court reasoned that
The School District employed a model in which primary responsibility for evaluating released time courses lay with accredited private schools, not the public schools. Thus, under this model, an unaccredited entity, such as Spartanburg Bible School, could offer a released time course and assign grades to participating students for transfer to the public school system if it received a stamp of approval from an accredited private school. In this manner, the released time grades are handled much like the grades of a student who wishes to transfer from an accredited private school into a public school within the School District; the public school accepts the grades without individually assessing the quality or subject matter of the course, trusting the private school accreditation process to ensure adequate academic standards.
This model has enabled the School District to accommodate the desires of parents and students to participate in private religious education in Spartanburg County while avoiding the potential perils inherent in any governmental assessment of the “quality” of religious instruction.
A new article by Samuel R. V. Garland-- Moss v. Spartanburg County: How the Fourth Circuit Got it Wrong and What it Means for the Future, 48 Wake Forest L. Rev. 1075 (Fall 2013)--dissects this case. He argues that the Fourth Circuit effectively collapsed the three separate prongs from Lemon v. Kurtzman into a singular conclusory analysis about the statute's constitutionality. Separate consideration of each Lemon prong, or application of the coercion or endorsement tests from other Supreme Court holdings, would have demonstrated that the statute was unconstitutional.
Tuesday, February 4, 2014
Alan Houston, an African-American middle school principal, alleged he was removed from his position in retaliation for racial complaints made by Houston and his wife. Houston alleged this action violated Equal Protection, the First Amendment, and state tort law. The District Court, in Houston v. Indep. Sch. Dist. No. 89 of Okla. Cnty., 949 F.Supp.2d 1104 (W.D. Okla. 2013), dismissed Houston’s equal protection and state claims, but held that he could amend his equal protection claim. The equal protection claim was not fully fleshed out, but my reading is that the better claim would have been a Title VI or Title VII complaint, in which he alleged retaliation for his complaints regarding discrimination. The Supreme Court in Jackson v. Birmingham explicitly recognized such a claim for complaints of gender discrimination under Title IX and lower courts have extended the holding to Title VI.
The First Amendment claim is particularly interesting. The court takes up the Garcetti and Pickering analysis and combines them into a 5-factor test, focusing heavily on whether the speech was of public concern and made in the plaintiff's official capacity. The district court also applies the Twombly/Iqbal pleading standards. In short, the case is a professor's playground for new, controversial and intersecting Supreme Court precedent. Unfortunately, the district court's opinion is relative short.
Monday, January 6, 2014
South Carolina Democrats have renewed a bill that would put "prayer back in schools." I did not know if ever left. No Supreme Court decision has ever done anything to limit a student's voluntary desire to pray. Assuming students still have that desire, they can pretty much pray any time they want, although during classroom instruction may require that they pray silent. What the Supreme Court has held is that school officials cannot lead students in prayer, endorse prayer, construct settings that coerce students to pray, or give students who wish to pray beneficial treatment.
The proposed bill in South Carolina states "All schools shall provide for a minute of mandatory silence at the beginning of each school day, during which time the teacher may deliver a prayer, provided the school allows a student to leave the classroom if the student does not want to listen to or participate in the prayer." I will have to give South Carolina legislators credit for this one. It would seem to violate all four of the above constitutional prohibitions. It provides for teachers to lead prayer. It goes way beyond just endorsement; it mandates time explicitly for prayer. By asking those who do not wish to pray to leave, it asks them to single themselves out as non-believers/non-prayers and, thus, coerces their participation in prayer. Asking everyone who does not wish to prayer to leave the classroom also giver praying students preferential treatment. They get to stay in place while others presumably stand in the hall.
Representative William Gilliard, however, sees this as a compromise bill, reasoning that "students to pray to whomever they want to. If they want to do away with teachers conducting the prayer that would be fine with us. The essential part of the bill, the important part, is putting prayer back in school. There would be no noise, no disruption, no anything. But the teacher would conduct it to let the students know we would have one minute for a moment of silence of prayer. That person can pray to whomever they please.”
For obvious reasons, this bill has stalled in the judiciary committee. But with support from democrats, I would not write this bill off, particularly in a legislature that both now and historically spends a lot of time on "nullification" bills.
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).