Monday, September 16, 2013
Special Education Teacher Who Objected to School’s Inclusion Plan Failed to State Valid Retaliation Claim Under § 504 or First Amendment
The Tenth Circuit has rejected a former special education teacher’s § 504 and First Amendment retaliation claims based on her reassignment to a general education classroom in Duvall v. Putnam City Sch. Dist. No. 1. The federal circuit court found that the teacher’s reassignment, after she protested her school’s special education policies, was supported by a legitimate reason and that her statements were made as part of her official duties, for which she was subject to employer discipline under the Garcetti/Pickering test. The teacher, Louise M. Duvall, was a special education teacher in Oklahoma when she protested her school’s decision to adopt a “full inclusion” model for providing special education services in the 2007-2008 school year. The full inclusion model integrates special education students into general classrooms by having special education teachers co-teach in those classrooms. Duvall was concerned that this inclusion model would not allow her to provide special education services such as “pull-out services”– one-on-one or small group instruction for special education students away from general education classrooms. She voiced her concerns that the inclusion model did not comply with federal disability education laws. Duvall also dissented to most of the IEPs with which she was involved during the school year and asked state agencies for information about “services for children.” She believed that those acts got her into trouble with school administrators. The next school year, the principal reassigned Duvall to a first-grade classroom, because he “believed she would be happier and more comfortable in that position and that such a move would greatly benefit her, her students, and the school.” Duvall protested the move, saying that she did not want to lose the extra five percent of pay that she received as a special education teacher. Duvall then resigned and sued the Putnam City School District and the school’s administrators under the Rehabilitation Act and the First Amendment, claiming that her reassignment to teaching first-grade was in retaliation for her opposition to the inclusion model. The Western District of Oklahoma granted summary judgment in favor of the school district on all of Duvall’s claims.
On appeal, the Tenth Circuit agreed that while Duvall’s reassignment was an adverse employment action, Duvall did not prove that the district’s stated reason for reassigning her was illegitimate or pretextual under McDonnell Douglas. Given that the school district was committed to a special education model to which Duvall was strongly opposed, the district’s stated reason for reassigning her—because the move would benefit her and the school—was not unworthy of belief, the circuit court found. The Tenth Circuit also found that Duvall’s letters and IEP dissents were not protected speech that was insulated from employer discipline under the First Amendment. The circuit court, applying Garcetti/Pickering, found that Duvall’s duties as a special education teacher included ensuring compliance with state and federal law, and thus her speech about the district’s meeting those obligations was undertaken in the course of her official duties. The Tenth Circuit further found that Duvall could not show that her statements to the State Department of Education about the full inclusion model caused her reassignment, because she failed to show that her direct employers were aware of the content of her views about the full inclusion model. Read the full opinion in Duvall v. Putnam City Sch. Dist. No. 1, No. 11-6250 (10th Cir. Aug. 5, 2013) here.
Friday, September 13, 2013
Emily Gold Waldman shared this analysis with us:
When the Supreme Court held in Garcetti v. Ceballos that public employees do not have First Amendment protection for speech that they utter pursuant to their official duties – even if that speech is on a matter of public concern – it created a special carve-out. Responding to a concern raised in Justice Souter’s dissent about professors’ academic freedom, the majority explicitly stated that it was not deciding “whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” Since then, lower courts have had to grapple with two questions: (1) how does Garcetti apply to K-12 teachers’ job-related speech? and (2) how does Garcetti apply to university professors’ job-related speech?
So far, the circuits have been unanimous that Garcetti indeed applies to K-12 teachers’ job-related speech (essentially their classroom speech, the main aspect of their job). See, e.g., Johnson v. Poway Unified School District, 658 F.3d 954 (9th Cir. 2011); Evans-Marshall v. Board of Education, 624 F.3d 33d (6th Cir. 2010); Mayer v. Monroe County, 474 F.3d 477 (7th Cir. 2007). In other words, once the court finds that the teacher was speaking in her capacity as an employee rather than as a private citizen, the teacher loses her First Amendment claim.
By contrast, circuits are starting to hold that Garcetti does not apply to university professors’ job-related speech (i.e., their teaching and writing). The Fourth Circuit so held in 2011, see Adams v. Trustees of the University of North Carolina-Wilmington, 640 F.3d 550 (4th Cir. 2011), and the Ninth Circuit reached the same conclusion last week in Demers v. Austin, 2013 WL 4734033 (9th Cir. 2013). Both circuits reasoned that the Garcetti Court had explicitly reserved judgment on this sort of speech, and that applying the Garcetti framework to the teaching and writing of public university professors would imperil their academic freedom. (Indeed, they would have no First Amendment protection for such speech; their only protection would depend on their contractual arrangements with their universities.)
This distinction makes sense, and I think other circuits will probably follow the trend of holding that Garcetti applies to K-12 public school teachers’ classroom speech, but not to public university professors’ teaching and writing. The one odd thing about Demers is that the Ninth Circuit used such broad language in several places– stating that “there is an exception to Garcetti for teaching and academic writing” – that it almost could be read to encompass K-12 teachers as well as university professors. If it weren’t for the Ninth Circuit’s earlier decision in Johnson v. Poway – where it specifically applied Garcetti to a high-school teacher’s classroom speech – I’d really be wondering about this. In any event, it will be interesting to see how other circuits – and ultimately the Supreme Court? – weigh in on these questions.
Wednesday, September 4, 2013
The 9th Circuit affirmed a summary judgment ruling last week against a Nevada high school student who was expelled for off-campus speech. Landon Wynar, then a high school sophomore, was expelled for sending instant messages threatening to shoot certain classmates, bragging that he would “take out” people. After his expulsion, Wynar and his father sued the school district, arguing that it violated Wynar’s civil and First Amendment rights by expelling him for messages sent while off-campus. The 9th Circuit found that the school reasonably regarded Wynar’s messages as a threat, and it did not have to wait until that threat materialized. The court stated, “The messages presented a real risk of significant disruption to school activities and interfered with the rights of other students. Under the circumstances, the school district did not violate Landon’s rights to freedom of expression of due process.” Read the court’s opinion in Wynar v. Douglas County School District here.
Monday, August 19, 2013
Last fall, the University of Missouri-Kansas City hosted a symposium that included various litigants and attorneys who were actually part of the Supreme Court's landmark student speech cases. It also included leading student free speech scholars. The articles from the the symposium are now available on westlaw. Below are abstracts.
Allen Rostron, INTELLECTUAL SERIOUSNESS AND THE FIRST AMENDMENT’S PROTECTION OF FREE SPEECH FOR STUDENTS, 81 UMKC L.Rev. 635 (Spring 2013)
Abstract: “Part I of this essay provides a basic review of the Supreme Court's significant rulings about the free speech rights of students. Part II looks at how the lower courts continue to be divided over difficult questions about the constitutional analysis required by Tinker and the Supreme Court's other key precedents on student speech. In particular, it illustrates the uncertain and disputed character of this area of First Amendment law by examining the varying approaches that lower courts have used in a line of cases about student displays of the Confederate flag. Part III
proposes that courts can make a small step forward by explicitly making intellectual seriousness a legitimate factor for school officials to consider in deciding what student expression to permit or prohibit.”
Emily Gold Waldman, No Jokes About Dope: Morse v. Frederick’s Educational Rationale, 81 UMKC L.Rev. 685 (Spring 2013)
Abstract: “This piece begins with a “protective” reading of Morse, showing how this rationale provides a good starting point in understanding Morse but is ultimately incomplete. Indeed, Justice Stevens' dissent is largely an argument that the protective rationale falls short here. I then re-examine Morse from the perspective of the educational rationale and conclude that the underlying, largely unstated premise of the Morse majority is that schools-as part of teaching students about the gravity of drug use- should be able to convey disapproval of messages suggesting that drug use is a joking or trivial matter. This helps to explain why Justice Stevens' argument-that Frederick's message was “stupid” and that he was just seeking attention-was wholly unconvincing to the majority, which was disturbed by those very aspects of Frederick's speech. It also helps to explain Justice Alito's concurrence, in which he distinguished between Frederick's speech and any speech that could “plausibly be interpreted as commenting on any political or social issue.” What harmed Frederick was that his speech minimized the seriousness of drug use while lacking the redeeming value of conveying a genuine message. In Justice Alito's eyes, a thoughtful argument for legalizing marijuana would deserve more protection than Frederick's banner, regardless of whether the former might actually have greater potential to persuade at least some students to experiment with it. I conclude with some reflections about why the Court left Morse's educational rationale in the subtext, rather than explicitly articulating it, and what this suggests for how the Supreme Court is approaching student speech cases.”
Andrew W. Kloster, Speech Codes Slipping Past the Schoolhouse Gate: Current Issues in Student’s Rights, 81 UMKC L.Rev. 617 (Spring 2013)
Abstract: “The areas outlined in this article are not the only active areas in the struggle for students' rights. Courts and school administrations are still grappling with the effects of disappointing Supreme Court decisions in Christian Legal Society v. Martinez and
Garcetti v. Ceballos. And, of course, even plainly unconstitutional speech policies exist at many
schools, requiring perpetual vigilance on the part of First Amendment advocates. But the areas outlined in this article are particularly unsettled. In Part II, this article will address the question of First Amendment limitations on off-campus, out-of-school speech. Part III examines the approaches to off-campus, out-of-school speech by the courts. In Part IV, this article will explore the ways in which uneven qualified immunity jurisprudence provides a patchwork of legal remedies across the nation. Part V will address some ways in which public schools, particularly at the college level, do an end-run around the First Amendment by outsourcing speech restriction to third parties. These three issues represent the cutting edge of today's students' rights advocacy. The
root of most of the problems is largely a lack of clear guidance by higher courts. American schools are the flowers of democracy; expression there must prosper if we are to have confidence in the legitimacy of our democratic institutions.”
Wednesday, August 14, 2013
Last week, the Third Circuit issued its en banc opinion in B.H. v. Easton Area School District – aka the “I [heart] boobies” case. Some quick background: as part of its work to educate thirteen- to thirty-year-old women about breast cancer and encourage them to perform self-examinations, the Keep A Breast Foundation began an initiative entitled “I [heart] boobies.” Part of the campaign involved selling silicone bracelets emblazoned with “I [heart] Boobies! (KEEP A BREAST)” and “check yourself! (KEEP A BREAST)”. Two middle-school girls purchased the bracelets with their mothers and wore them to school; after a few weeks, the school decided to prohibit bracelets containing the word “boobies,” although it encouraged students to wear other items in honor of Breast Cancer Awareness Month, such as the traditional pink ribbons. The students (through their mothers) sued and were successful in getting a preliminary injunction from the district court; the Third Circuit then decided to hear the case en banc.
In a 9-5 split, the Third Circuit affirmed, ruling that the ban on the bracelets violated the First Amendment. The court rejected the school district’s argument that Fraser’s “plainly offensive” standard justified the ban. Interestingly, the court applied a gloss from Morse v. Frederick to the Fraser standard. The court explained that in Morse, Justice Alito – who wrote a separate concurrence and provided the crucial fifth vote – had distinguished between pure pro-drug advocacy and speech “that can plausibly be interpreted as commenting on any political or social issue.” Building on this, the court articulated a new Fraser framework: (1) plainly lewd speech can always be restricted in schools; (2) speech that isn’t plainly lewd, but that a reasonable observer could interpret as lewd, can be categorically restricted as long as it doesn’t plausibly comment on political or social issues; and (3) speech that isn’t plainly lewd, and that can be plausibly interpreted as commenting on political or social issues, can’t be categorically restricted (although it still can theoretically be restricted under Tinker). The majority ruled that this speech fell into category (3): “boobies” wasn’t categorically lewd, and the overall message contained political/social commentary on breast cancer awareness.
There’s a lot I like about this opinion. I’ve long thought that Alito’s emphasis in Morse on the presence of some sort of political/social commentary in student speech provides a helpful dividing line, even though it can get blurry at the margins. One of the dissents argued that it was inappropriate to let Morse inform the Fraser standard – that each student speech case is an “independent analytical construct.” But if we are trying to create an overall student speech framework that makes sense, I think it is helpful to think thematically and consider how the cases overlap and inform each other. Indeed, Alito’s discussion in Morse echoed Fraser’s own emphasis on the absence of political content in the student speech at hand. And in theory, I think the framework that the Third Circuit articulated makes a lot of sense.
That said, there are some pretty obvious controversies coming down the pike. The majority went out of its way to hold that “I [heart] Tits” could still be restricted as plainly lewd, but expressly declined to reach the “I [heart] Balls” slogan that is already being used by the Testicular Cancer Awareness Project, which is selling “feelmyballs” bracelets.
I also can’t help wondering about how this case would have played out if it were a middle-school boy initially wearing the “I [heart] boobies” bracelet. The court emphasized that “the subjective intent of the speaker” is irrelevant in the Fraser analysis, but it nonetheless set forth the sympathetic facts here: the speakers were girls who had bought the bracelets with their mothers to commemorate friends and relatives who had suffered from breast cancer. I suspect that not all the middle-school wearers of the “I [heart] boobies” and “feel my balls” bracelets will be coming from the same mindset.--Emily Gold Waldman
Monday, August 12, 2013
Consistent with the summer of school choice news, another interesting story just came out of Virginia. Virginia has an extremely lenient home school provision that exempts parents who home school for religious reasons from all state oversight. No records, no transcripts, no test scores and no proof of instruction. Now Josh Powell, a teenager, wants to go to public school, but his parents won't enroll him. Apparently, he asked local school officials to let him enroll, arguing that he was learning so little at home. According to him, he didn't know how to write an essay, didn't know South Africa was a country, and couldn’t solve basic math problems.
This case highlights what I have always felt was missing from the Supreme Court's seminal decision in Wisconsin v. Yoder, in which the Court held that the Amish's interest in exempting their children from high school education outweighed the interests of the state. In Yoder, the Court ignored the interests of the child and the possibility that they would be at odds with the parents. The Court reasoned that the child was not a party in the case and, thus, it did not address the issue. But of course, a child's interests are always at stake when determining the education he or she will recieve.
For more on the current dispute, see here. Presumably, Powell's only recourse will be legal. It would be interesting to see how a court balances his interest in education against his parents' statutory and constitutional right to control his upbringing.
Thursday, August 8, 2013
In Leslie v. Hancock County Bd. of Educ., No. 12-13628 (11th Cir. Jul. 12, 2013), the 11th Circuit Court of Appeals held that because the law was not clearly established that a public employer can be held liable for retaliation against policymaking or confidential employees for speech about government policy, school board members sued in their individual capacity were entitled to qualified immunity. The Superintendent of the Hancock County School System, Awanna Leslie, and Assistant Superintendent Bettye Richardson, were fired and demoted, respectively, after complaining about local tax policy in the Atlanta Journal-Constitution. Leslie and Richardson sued under § 1983, alleging that the school board retaliated against them for exercising their First and Fourteenth Amendments rights to free speech. At trial, the Board argued that the plaintiffs' speech was not protected by the First Amendment under the balance of interests test outlined in Pickering v. Board of Education, 391 U.S. 563 (1968). Pickering's balancing test supported its position, the Board argued, because Leslie and Richardson were policymaking employees, and neither the U.S. or Georgia supreme courts have answered the question whether Pickering favors the government employer. Thus, the Board members argued, qualified immunity protected them because Leslie and Richardson's right to free speech in this context was not clearly established. Individual public officials acting within their discretionary authority have qualified immunity if their acts does not violate clearly established statutory or constitutional rights. The 11th Circuit also found that it lacked subject matter jurisdiction over the Board's appeal of the denial of its motion to dismiss for failure to state a claim. The Court stated that the Board's claim was not "inextricably intertwined" with the individual members' appeal of the district court's qualified immunity ruling, and thus there was no pendent appellate jurisdiction.
Friday, June 28, 2013
A newly decided case, Glowacki ex rel v. Howell Public School Dist., 2013 WL 3148272 (E.D. Mich. 2013), involves the tension between preventing bullying in school and respecting students' free speech rights. During Anti-Bullying Day at Howell High School, plaintiff was thrown out of a teacher’s classroom for saying, among other things, “I don’t accept gays.” The plaintiff sought an injunction and declaratory relief against defendant, alleging a violations of the First Amendment.
Relying on Tinker v. Des Moines, the court held that the plaintiff’s comments were protected by the First Amendment’s Free Speech Clause, as they were an expression of his opinion rather than harassing behavior directed at other students. The court rejected the teacher's claim of qualified immunity for the claims against him personally, but held that the school district was not liable for the teacher's violation of the student's rights because the district's "policies comport with the school speech standard set forth in Tinker and are therefore constitutional. At most, the School District negligently adopted a policy that posed a risk to the First Amendment rights of its students and negligently failed to provide training on the intersection of anti-bullying policies and the First Amendment.” But the court found that the plaintiffs' allegations were devoid of facts indicating that the district was negligent in training its teachers.
The case is also interesting for its substance and because it cites to one of our colleagues in regard to its analysis of whether the student's speech was protected. The relevant section reads as follows:
There is no indication from the evidence here that the negative comments Daniel made about homosexuality threatened, named, or targeted a particular individual or, for that matter, that Daniel even knew that there was a homosexual student in his economics class. (McDowell Dep., McDowell's Mot. Summ. J. Ex. B, at 80:13–17.) Given that the speech did not identify particular students for attack but simply expressed a general opinion—albeit one that some may have found offensive—on the topic of homosexuality, the Court finds that Daniel's expressive conduct did not impinge upon the rights of other students. See generally Emily G. Waldman, A Post–Morse Framework for Students' Potentially Hurtful Speech (Religious and Otherwise), 37 J.L & Educ. 463, 468–69, 499–503 (2008) (suggesting a framework for analyzing potentially hurtful student speech by asking whether the speech was directed at a particular individual, and if not, assessing the impact of such speech on the educational performance of students hearing the speech).
For those who read in full, you will see that it broaches serious issues and one could query the extent to which the student's behavior could be interpretted was to do more than just express his opinion, but I will leave it to Professor Waldman to tell us whether the court applied her principle correctly. Regardless, Kudos to Professor Waldman, who shows that our scholarship is relevant both in the classroom and in court.
For those interested in knowing a little more about Professor Waldman's article, she shared, at my request, the following explanation:
My article suggested that, in analyzing whether potentially hurtful student speech warrants protection, courts should distinguish between (1) speech that identifies particular students for attack and (2) student speech that is primarily commenting on a political, social, or religious issue. I argued that schools should have broad rein to restrict the first category, but should only be able to restrict speech in the second category when there is a real likelihood that the speech will substantially disrupt the education of at least one other student. I was very pleased to see that the district judge in this case found this distinction helpful.
Friday, June 21, 2013
A federal district judge has ruled that a high school teacher violated the free speech rights of a Michigan student by removing him from class for expressing views that he didn't "accept gays" because of his Roman Catholic faith. In the June 19 decision in Glowacki v. Howell Public School District, U.S. District Judge Patrick J. Duggan of Detroit awarded nominal damages of $1 to Daniel Glowacki, who was a junior at Howell High School in the fall of 2010 when he made the statement. Judge Duggan wrote in the opinion that"[p]ublic schools must strive to provide a safe atmosphere conducive to learning for all students while fostering an environment that tolerates the expression of different viewpoints, even if unpopular, so as to equip students with the tools necessary for participation in a democratic society."
Tuesday, May 21, 2013
Supreme Court grants cert in government prayer case; mum on challenge to high school graduations in churches
The U.S. Supreme Court granted cert yesterday in a government prayer case that could implicate religious expression during school board meetings. In Town of Greece v. Galloway, a New York town's practice of opening its legislative meetings with prayer--typically conducted by Christian clerics--is being challenged. The Supreme Court will review the Second Circuit Court of Appeals' holding that praying before town meetings is a government sanction of religion that violates the Establishment Clause. Lyle Dennison at SCOTUS Blog notes that the Court has said nothing about Elmbrook School District v. Doe, despite the case being on the conference calendar seven times this spring.
The school case challenged the Elmbrook, Wisconsin Board of Education's renting a church for high school graduations. Although the district's graduation exercises were moved to a non-religious facility in 2010, the issue presented of whether school districts may use religious facilities for school events remains unresolved. Last summer, the 7th Circuit Court of Appeals held en banc that "an unacceptable amount of religious endorsement and coercion occurred when the District held important civil ceremonies in the proselytizing environment of Elmbrook Church. The 7th Circuit noted that its decision was narrowly focused to the facts before the court and that its ruling "should not be construed as a broad statement about the propriety of governmental use of church-owned facilities."
Sunday, May 12, 2013