Wednesday, November 5, 2014
Two new articles of note are available on westlaw now. They are about two entirely different trends, but suggest a huge irony when read together.
Janet R. Decker, Facebook Phobia! The Misguided Proliferation of Restrictive Social Networking Policies For School Employees, 9 NW J. L. & Soc. Pol'y 163 (2014). The abstract states:
Employers have dismissed and disciplined teachers and other school employees for posting controversial material and engaging in inappropriate employee-student relationships over social networking. In response, schools have enacted policies that greatly restrict educators' social networking. This Article examines whether restrictive social networking policies are necessary. After analyzing the relevant state legislation, statewide guidance, district policies, and case law, this article argues that restrictive policies are unwarranted and misguided. School districts have prevailed in the vast majority of the cases because they already have the legal authority to discipline employees under existing law. This Article also recommends how policymakers and school leaders could respond to school employees' social networking more effectively.
Brandi LaBanc, Kerry Melear, and Brian Hemphill's new article, The Debate over Campus-Based Gun Control Legislation, 40 J.C. & U.L. 397 (2014), begins with an overview of mass and public shootings that have led to the increase in gun control legislation. Because the Second Amendment is often implicated by these debates, the authors provide an outline of the amendment and related Supreme Court decisions. The authors then focus on "state firearm laws that resonate within higher education, including state laws permitting concealed weapons on campus and other gun-related legislation." Specifically, in 2013 four states passed gun control laws affecting higher institutions (Alaska, Arkansas, Texas, and New York), and all four laws are briefly discussed. The evaluates the arguments for both allowing and prohibiting firearms on college campuses. Finally, the authors conclude with a best practices discussion.
Tuesday, October 28, 2014
Raul R. Calvoz, Bradley W. Davis, and Mark A. Gooden's new article, Constitutional Implications of School Punishment for Cyber Bullying, 2014 Cardozo L. Rev. de novo 104, is available. It addresses the constitutional and legal challenges that may stand in the way of administrators and legislators' attempts to combat cyber bullying. First, since the acts most frequently associated with cyber bullying involve written words, a student's First Amendment right to free speech is implicated. Second, due to the mobile nature of technology, a student's actions outside of school grounds, even if they have an incidental impact on school grounds, raise the question of whether schools have jurisdiction to discipline the students.
The authors frame their analysis within the context of the substantial disruption test from Tinker v. Des Moines. In Tinker, the Supreme Court held that school administrators may regulate student speech if the regulation aims at preventing a foreseeable: (1) material or substantial disruption in the school environment; or (2) invasion of the rights of others. The authors reason that school administrators may, without violating students' constitutional rights, regulate and prohibit any bullying (including cyber bulling) which falls into either of those two categories. However, the jurisdictional question complicates matters.
Tuesday, September 30, 2014
A new student comment by Talon Hurst, Give Me Your Password: The Intrusive Social Media Policies in Our Schools, 22 CommLaw Conspectus 196 (2014), discusses social media policies "that allow school officials to request or demand students to consent to their social media accounts being accessed or monitored[.]" The author argues that these policies violate students' First and Fourth Amendment rights, and calls for judicial review of their constitutionality. Hurst emphasizes that these kinds of social media policies are not only a concern in primary and secondary schools, but also growing in prevalence at a number of colleges and universities, especially in regards to student athletes. Who knew colleges and universities were so interested in their students?
Hurst points to school officials at the University of North Carolina, who "force their student-athletes to consent to the monitoring of their social network accounts by signing a social media policy[,]" which states that "'[e]ach team must identify at least one coach or administrator who is responsible for having access to and regularly monitoring the content of team members' social networking sites and posting.'"
Friday, September 26, 2014
High school students protesting proposed changes to the history curriculum in Denver area schools have gained national attention in recent days. The pertinent portion of the proposal before the school board states:
Materials should promote citizenship, patriotism, essentials and benefits of the free enterprise system, respect for authority and respect for individual rights. Materials should not encourage or condone civil disorder, social strife or disregard of the law. Instructional materials should present positive aspects of the United States and its heritage. Content pertaining to political and social movements in history should present balanced and factual treatment of the positions.
The number of students protesting swelled to seven hundred to one thousand on Wednesday. As an educator, I am heartened to see students taking such a serious interest in their education, particularly history, and making use of the First Amendment rights. As a law professor, I am not sure their position has legal grounding. Rather, their claim, if they have one, is of policy. I agree with their substantive position--that the school should not censor the truth or bend the historical narrative--but I am not sure the proposed policy crosses the line of permissible conduct.
Monday, September 22, 2014
Shortly after the shooting of Michael Brown in Ferguson, Edwardsville, Illinois Superintendent Ed Hightower told his teachers to not bring up or discuss the situation in Ferguson and, if students brought it up, to change the subject. His rationale, “this situation in Ferguson-Florissant has become a situation whereby there are so many facts that are unknown.” The initial impetus was apparently complaints by parents about teachers sharing their opinions on Ferguson. That motivation would have obviously raised First Amendment red flags. In a subsequent statement, he tried to fit his directive closer to the law, stating:
We felt it was important to take the time to calm a potential situation at the high school and to prepare administrators and teachers to approach this critical issue in an objective, fact-based manner. Everyone has an opinion — the sharing of which can be polarizing. Far too many facts remain unknown, and without these facts, none of us is in the best position to moderate between opposing views.
Friday, September 19, 2014
Those who seek to include more religion in school often perceive the ACLU as waging war on religion. A recent story out of Louisiana demonstrates that perception is wrong. The ACLU distinguishes between official school acts that endorse religion or subtly coerce non-believers into religious activity and those school acts that interfere with students's free exercise of religion.
At the beginning of the school year, South Plaquemines High School in Louisiana suspended a Rastafarian boy school and forbade him from returning until he cut his dreadlocks. They cited him with violating the school's dress code, which prohibits hair below the collar. The next week he returned to school with his hair pinned up, but told him he was still in violation of the dress code.
Rastafarians' religious beliefs, although some charge it is just a way of life, forbid them from cutting their hair, and the ACLU of Lousisiana has stepped in to support the boy for this reason. “The wearing of dreadlocks for (the student) is akin to the wearing of a religious icon by another student,” the ACLU said in a letter. “We would object if the school were to tell a Christian student they could not wear a cross or if it were to permit the wearing of religious icons of one faith and prohibited those of another faith. In discriminating against (the student’s) religious beliefs, the school is expressing a preference for certain religions, which is unacceptable.” The ACLU charges that the district's actions violate the First Amendment and Louisiana’s Preservation of Religious Freedom Act.
Tuesday, September 9, 2014
Today, the Judiciary Committee in the U.S. House of Representatives is holding a hearing on the need for a constitutional amendment to protect parental rights. Of concern to proponents are state incursions on the ability of parents to direct the education and medical decisions of their children. Such an amendment will go nowhere fast, but the testimony and discussion should be of interest to scholars and advocates. The committee will hear testimony from Michael Farris, Chairman of the Home School Legal Defense Association; Professor Catherine Ross, George Washington University Law School; and Wendy Wright, Vice President of the Center for Family and Human Rights Institute. Details on the hearing and links to their written testimony can be found here.
Tuesday, September 2, 2014
New Hampshire Supreme Court Reinstates Tuition Tax Credit Program But Avoids Law’s Constitutionality
A unanimous New Hampshire Supreme Court rejected a challenge last week to the state’s tuition tax credit law but side-stepped the issue of its constitutionality. The state supreme court dismissed Duncan v. State of New Hampshire on standing grounds, holding that a recent amendment to the law allowing taxpayer standing was insufficient to confer standing under the state constitution. While New Hampshire’s constitution does not have a corresponding provision to the federal constitution’s Article III standing clause, the court interpreted a provision authorizing the supreme court to rule upon “upon important questions of law and upon solemn occasions” to prohibit issuing advisory opinions to private persons. The N.H. Supreme Court’s ruling reinstates a law allowing businesses to receive an 85 percent tax credit when they donate to private scholarship organizations for students who attend private school, homeschool or an out-of-district public school. A lower court ruled last year that the tax credit program unconstitutionally sent public tax dollars to private religious schools. Right now, the tax credit program is so small that it may be difficult to demonstrate harm in a future legal challenge, Bill Duncan, state Board of Education member and lead plaintiff, told NPR. The state’s first scholarship program raised $250,000 dollars for scholarships in 2013, but $50,000 this year, albeit in the shadow of the lower-court ruling. The state program would allow up to to $5.1 million in tax credits to be claimed this year. Read Duncan v. State of New Hampshire here.
Thursday, August 14, 2014
In October 2012, a controversy arose at Kountze High School in Kountze, Texas, over the constitutionality of permitting, and then banning, the high school's cheerleaders from displaying religious messages on the banners that the football team runs through at games. Initially, the Freedom From Religion Foundation challenged the banners as school sponsored speech. The school district agreed and prohibited the banners. The cheerleaders then sued, claiming that the school was infringing on their constitutional rights by limiting their speech. A state trial court agreed. After an intermediate court declared the case moot, it is now on petition to the state supreme court.
The case is particularly fascinating for three reasons. First, it implicates the fine line between religious endorsement and religious accommodation that often consumes so much time in education law classes. Second, it raises unique and difficult circumstances for assessing school sponsored speech. Thinking of my own experiences two decades ago, it seemed cheerleaders were on their own in artistically expressing themselves through banners. I recall them sitting on the gym room floor acting freely. It is hard to imagine that a school could permissibly engage in content based or religious based limitation of that expression.
Tuesday, July 29, 2014
The Supreme Court in Engel v. Vitale in 1962 held that prayer led by or encouraged by school officials in public schools is unconstitutional. Nonetheless, the practice continues in a number of public schools today. Recently, for example, a parent complained that a teacher had led prayer at a school banquet in Vigo County, Wisconsin. It took a year and lawsuit by a local foundation to get the district to agree to eliminate teacher led prayer.
Many school districts have appeared eager, for some time, to reintroduce official prayer in some aspect of their schools. The Supreme Court’s recent decision in Town of Greece v. Galloway may have further galvanized them. In Town of Greece, the Court ruled in favor of allowing sectarian prayers at public town meetings. Now, school districts like Pickens County, South Carolina are taking the Supreme Court’s decision a step further, reading it as a green-light to reinstate sectarian prayer in school board meetings as well.
Monday, July 21, 2014
An Arizona charter school, Heritage Academy, is purportedly using two of Cleon Skousen’s books, “The 5,000 Year Leap” and “The Making of America,” in its high school history class. The books depict American slavery in a racist and sympathetic light. Skousen, for instance, includes an essay arguing that “if [African-American children] ran naked it was generally from choice, and when the white boys had to put on shoes and go away to school they were likely to envy the freedom of their colored playmates.” Professor Garret Epps, University of Baltimore School of Law, explains that “parts of [Skousen's] major textbook … present a systematically racist view of the Civil War” with a “long description of slavery in the book” arguing that slavery was “beneficial to African-Americans and that Southern racism was caused by the ‘intrusion’ of Northern abolitionists and advocates of equality for the freed slaves.” The school's founder and principal defends the use of the books, stating that "Our purpose is not to convert students to different religious views. It is to show them that religion influenced what the Founders did.”
Rushing to judgment in book cases is all too easy, and that is how school boards and state departments of education find themselves in lawsuits. All books can have value in the classroom. What matters is not the views the books espouse, but how those views are presented to students. As a litany of establishment clause cases has shown us, the Ten Commandments and the Bible can be used in school, if used in the proper context. The problem is that the proper context is most often lacking.
Thursday, July 17, 2014
The U.S. District Court for the Middle District of Florida dismissed a suit against the Orange County School Board (OCSB) earlier this month, finding that the claim that the Board prohibited distribution of anti-religion materials was moot. An advocacy group, the Freedom From Religion Foundation, filed the federal complaint after the OCSB did not allow the group to hand out flyers in schools that criticized various religions. The Foundation charged that the OCSB's restriction was viewpoint discrimination because the OCSB allowed a group called the World Changers of Florida to distribute copies of the Bible. The OCSB, in explaining the different treatment, cited a consent decree from another Florida county school board to allow World Changers to distribute Bibles on school grounds (none of the parties in the Orange County case were parties to the prior consent decree). The Orange County case was mooted, the Middle District found, because the OCSB stated "that each of the materials plaintiffs sought to distribute will be unconditionally allowed" and thus the prohibition that gave rise to complaint was unlikely to reoccur. Read the district court's decision in Freedom From Religion Foundation v. Orange County School Board at Courthouse News Service here.
Wednesday, July 9, 2014
The New York Court of Appeals recently struck down a local cyberbullying ordinance enacted by the Albany County Legislature on First Amendment overbreadth grounds. In 2010, the Albany County Legislature adopted a new misdemeanor offense — cyberbullying — defined as "any act of communicating . . . by mechanical or electronic means . . . with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person." A high school student was prosecuted under the statute after he anonymously posted photographs of his classmates and other minors with sexual captions attached to the pictures. The student pleaded guilty to one count of cyberbullying but reserved his right to raise his constitutional arguments on appeal. On appeal, the Court noted that the statute "create[d] a criminal prohibition of alarming breadth" that "criminalize[d] a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult." The county government conceeded on appeal that the ordinance was overbroad and thus limited protected free speech, but argued that the law could be saved because certain sections passed strict scrutiny review, namely the prohibitions against disseminating sexually explicit photographs, private or personal sexual information, and false sexual information with no legitimate public, personal or private purpose. Those sections were justified, the County argued, by a compelling government interest and were narrowly drawn to serve that interest. The NY Court of Appeals declined to save the non-infringing sections of the ordinance, finding that the law's text "envelops far more than acts of cyberbullying against children by criminalizing a variety of constitutionally-protected modes of expression" and that the Court could not rewrite the law without encroaching on legislative power and modifying the legislature's original intent. Read the Court's opinion in People v. Marquan M. here and Eugene Volokh's comments on the case here.
Thursday, July 3, 2014
The Eleventh Circuit Court of Appeals recently held that a school employee’s speech, made while on leave from his school district serving as the president of the Georgia Association of Educators (“GAE”), was made in that role rather than as a school district employee. The circuit court thus overturned on First Amendment grounds a lower court's summary judgment ruling for the school district. The case arose when Richard Hubbard, who had been an assistant principal employed by the Clayton County (Georgia) School District, was elected to be president of the GAE. Hubbard was retained as a district employee to preserve his retirement status and benefits, but was considered “on-loan” to the GAE, which reimbursed Hubbard’s salary and benefits to the district. During his tenure as GAE president, the Clayton County School District had an accreditation crisis. Hubbard commented to the media that if certain allegations made against the Clayton County School District about the accreditation investigation were true, the school board should step down. Following those comments, the Clayton County School District voted to discontinue any employee leave that was not specifically allowed by Board Policy, including Hubbard’s “on-loan” arrangement. Hubbard resigned as a school employee and sued the district in federal court. A federal district court found in favor of the school district on summary judgment, deciding that Hubbard was speaking pursuant to his official duties for the school district and thus had no First Amendment protection under Garcetti v. Ceballos. The 11th Circuit disagreed, finding that Hubbard’s speech was made in his capacity as president of GAE, and thus his speech did not fall under Garcetti. The 11th Circuit noted that Hubbard was only technically an employee of the school district since he had no employee assignments or responsibilities to the district while “on-loan” to GAE. Read Hubbard v. Clayton County School District here.
Monday, June 30, 2014
Last year, three families filed suit against the New York City School system for its exclusion of their children because they had not received their vaccinations. They alleged that the forced vaccination program violates their religious beliefs.
In their First Amendment cause of action, Plaintiffs claim their rights to free exercise of religion were violated when their children were excluded from school due to their religious beliefs running counter to vaccination practice. Plaintiffs argue that their children were “arbitrarily, capriciously, unreasonably and unconstitutionally denied” the right to free exercise of religion based on the state vaccination practice, in general, and, in particular, because the religious exemption standards “force[ ] parents to detail their religious beliefs and submit to a ‘test,’ and the determinations of whether or not to grant the religious exemptions falls[ sic ] to the subjective judgment of one school official who is unqualified to make such a determination.”
The district court, in dismissed the case, wrote "not only has the Supreme Court strongly suggested that religious objectors are not constitutionally exempt from vaccinations, courts in this Eastern District have resolutely found there is no such constitutional exemption." Plaintiffs "opine that [the Supreme Court decision] is bad law and ask this Court to overturn the Supreme Court decision, [but] “this the Court cannot do.”" The court dismissed their equal protection and substantive due process claims just as quickly. Plaintiffs plan to appeal the case. The school system welcomed the reaffirmation of its policy, as public health officials indicate that "some diseases are experiencing a resurgence in areas with low vaccination rates."
More on the backstory here.
Thursday, June 19, 2014
The now well-publicized federal lawsuit filed this week by a former high school student after he was suspended for a two-word post highlights the continuing difficulties that school officials have regulating off-campus internet speech. The student, Reid Sagehom, was suspended from Rogers High School in Minnesota for his response to an anonymous question on an unofficial student website asking if he had made out with a female school teacher. Sagehom responded, sarcastically, he says, “Actually yeah.” The school then recommended Sagehom be suspended, ultimately for ten weeks, because he “damaged a teacher's reputation.” Sagehom filed a complaint on Tuesday alleging that his speech was protected and that the subsequent events to the post, including being referred for prosecution and publicly upbraided by a police chief, violated his First and Fourteenth Amendment rights. Sagehom's complaint may likely never reach the decision stage, but raises issues that continue to bedevil the federal courts -- when does students' off-campus internet speech actually cause a substantial disruption to the educational environment under Tinker? Read the complaint in Sagehom v. Independent School District No. 728, 2014 WL 2724866 (D.Minn. June 17, 2014) here.
Monday, June 16, 2014
The Elmbrook School district in suburban Milwaukee conducted high school graduation ceremonies in the auditorium of a church. The district's decision was based on its school's inadequate space and air conditioning. The graduation itself was completely secular, but some the church's religious symbols remained in the auditorium during graduation. The Court of Appeals held that holding the graduation there conveys the message of government endorsement of religion and, thus, struck down the practice. The Supreme Court denied certiorari in the case today, although the denial drew dissents from Justices Scalia and Thomas. You may recall that earlier this term the Court upheld the practice of prayer at the beginning public meetings as a non-coercive historical practice.
Monday, June 9, 2014
Following a number of school religious expression bills introduced in state legislatures in the last year, the North Carolina House passed a bill last week that allows public school students to pray, express religious viewpoints, pass out religious materials, and assemble "as is given to other noncurricular groups without discrimination based on the religious content of the students' expression." The N.C. House approved S.B. 370, which also provides that school employees who are viewing student religious expression "shall not be disrespectful of the student exercise of such rights and may adopt a respectful posture." The bill will have to return to the state senate for final approval, where it is expected to pass. The ACLU of North Carolina released a statement objecting to the bill's language which it says could leave school officials unclear about the rules, particularly as adopting "a respectful posture" could communicate approval of one religious view above others. In application, the legislation is certain to highlight the tension between the Establishment and the Free Speech and Exercise Clauses that currently require public school officials to show neutrality in their treatment of religion and not inhibit student expression of privately-held views as long as that expression does not infringe upon the rights of others. For an overview of the constitutional issues, read the ED's Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools here.
Wednesday, May 14, 2014
Massachusetts' Supreme Judicial Court held in Doe v. Acton-Boxborough Regional School District that the pledge of allegiance does not violate the state constitution. Plaintiffs' claim was a denial of equal protection rather than religious freedom or establishment of religion. The court reasoned that (1) "the pledge is a fundamentally patriotic exercise, not a religious one;" (2) "no student is required to recite the pledge;" and (3) "[w]here the plaintiffs do not claim that a school program or activity violates anyone's First Amendment religious rights (or cognate rights under the Massachusetts Constitution), they cannot rely instead on the equal rights amendment, and claim that the school's even-handed implementation of the program or activity, and the plaintiffs' exposure to it, unlawfully discriminates against them on the basis of religion."
Plaintiffs' had argued that the Pledge "stigmatize[d]" and "marginalized" some students, making them "feel excluded." Per its third point above, the court emphasized that their was no evidence "that their children have been punished, bullied, criticized, ostracized, or otherwise mistreated by anyone as a result of their decision to decline to recite some (or all) of the pledge." Rather, plaintiffs' claim was
more esoteric. They contend that the mere recitation of the pledge in the schools is itself a public repudiation of their religious values, and, in essence, a public announcement that they do not belong. It is this alleged repudiation that they say causes them to feel marginalized, sending a message to them and to others that, because they do not share all of the values that are being recited, they are "unpatriotic" "outsiders." We hold that this very limited type of consequence alleged by the plaintiffs -- feeling stigmatized and excluded -- is not cognizable under art. 106.(23)
Three weeks ago, I posted on a similar pending suit under New Jersey law. This Massachusetts decision would suggest the answer to my earlier question of whether state courts might treat Pledge challenges differently than federal courts is no.
Wednesday, April 23, 2014
Matawan-Aberdeen Regional School District in New Jersey is being sued over the Pledge of Allegiance. Anonymous parents and the American Humanist Association are bringing the suit. They argue that the the phrase "under God" in the Pledge of Allegiance discriminates against atheists. The pledge
publicly disparages plaintiffs' religious beliefs, calls plaintiffs' patriotism into question, portrays plaintiffs as outsiders and second-class citizens, and forces (the child) to choose between nonparticipation in a patriotic exercise or participation in a patriotic exercise that is invidious to him and his religious class.
. . .
While plaintiffs recognize that (the child) has the right to refuse participation in the flag-salute exercise and pledge recitation, the child does not wish to be excluded from it, and in fact wants to be able to participate in an exercise that does not portray other religious groups as first-class citizens and his own as second-class.
To bolster their claim that the Pledge reinforces prejudice against atheists and Humanists, they cite to studies showing atheists are the most disliked and distrusted group in the country.
Unlike prior claims brought and rejected under the First Amendment of the United States Constitution, this claim proceeds under the New Jersey Constitution, which may make a difference.
In Newdow v. Rio Linda Union School District, 597 F.3d 1007 (9th Cir. 2010), the Ninth Circuit held that the Pledge in school did not violate the establishment clause. It reasoned that the words "under God" cannot be read alone, but must be read in the context of the entire pledge. Based on this context, the court held that the pledge and this phrase were patriotic not religious. It also pointed out that
The Supreme Court has agreed the Pledge is a “patriotic exercise designed to foster national unity and pride.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 6, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). Even the dissent agrees on this determinative point. Dissent at 4040 (“[T]he recitation of the Pledge both as originally written and as amended is a patriotic exercise....”). The question about which we disagree is whether this patriotic activity is turned into a religious activity because it includes words with religious meaning.
The 2010 decision by the 9th Circuit, however, was a shift in course, as some earlier decisions in the circuit had found the pledge to violate the Establishment Clause. The past history, as described by the court in Newdow, follows the jump.