Tuesday, January 26, 2016
The U.S. Supreme Court has granted certiorari in Trinity Lutheran Church v. Pauley, No. 15-577 (cert. grant. Jan. 15, 2016), which challenges Missouri's establishment clause barring the grant of public funds to a church. The church sued Missouri officials after being denied a grant of waste management funds to resurface a school playground on church property. On appeal, the Eighth Circuit affirmed the dismissal of the church's suit, citing Missouri's "high wall" against religious entanglement. Cribbed from the Questions Presented summary:
Trinity Lutheran Church applied for Missouri's Scrap Tire Grant Program so that it could provide a safer playground for children who attend its daycare and for neighborhood children who use the playground after hours--a purely secular matter. But the state denied Trinity's application solely because it is a church. The Eighth Circuit affirmed that denial by equating a grant to resurface Trinity's playground using scrap tire material with funding the devotional training of clergy. The Eighth Circuit's decision was not faithful to this Court's ruling in Locke v. Davey, 540 U.S. 712 (2004), and deepened an existing circuit conflict. Three lower courts--two courts of appeals and one state supreme court--interpret Locke as justifying the exclusion of religion from a neutral aid program where no valid Establishment Clause concern exists. In contrast, two courts of appeals remain faithful to Locke and the unique historical concerns on which it relied.
The question presented is “[w]hether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.”
Mark Walsh at The School Law Blog notes the potential impact of this case and another cert. grant, Douglas Cnty. School Dist. v. Taxpayers for Public Education, which if interpreted broadly, may challenge "Blaine amendments" language in several state constitutions.
Monday, January 11, 2016
The story of teachers--or any employee for that matter--who spoke up on a controversial reason only to be later terminated for performance based reasons is an old one. Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), was, of course, a due process case in which a professor on a one-year contract did not have his contract renewed. The Court held he was not entitled to due process, but from Roth's perspective the case was about free speech, not due process, as he had taken up students' fight for racial equity on campus. He claimed this was the reason for his non-renewal.
A recent firing of a New York City public school teacher, Jeena Lee-Walker, raises some of the same issues. Her controversy centers around her decision to teach students about a group of wrongly convicted African American males. Their story has been a source of major news in the city. In a lawsuit challenging her termination, Lee-Walker says that when she first proposed to teach the subject her superiors indicated she should offer a more “balanced” approach to the case. Otherwise, she might “rile up” the students and create little "riots." At their urging, she toned down her approach, but still presented the case in a way that she said led students to be very engaged in the subject matter.
In the eighteen months following the episode, she received a series of bad performance reviews, which led to termination based on poor evaluations and insubordination. As emphasized here, gauging "teaching effectiveness" based on student test scores--the method NYC uses--is methodologically flawed. Litigation challenging the state's teacher evaluation system is currently underway. What may be interesting in Lee-Walker's case is if she can turn her teacher evaluations against the state. Valid or not--if her statistical outputs are strong--it will undermine the city's case. If they are weak, she may be forced to challenge the evaluation method itself. Otherwise, the state would appear to have an objective reason for the termination. Regardless, issues of motivation and retaliation will only further complicate the case. Sounds like a good hypothetical for class or a final exam.
More on the backstory here.
Tuesday, December 22, 2015
Taylor Bell's Message Really Is Getting Out, All-Star List of Rappers, Professors, and Others Join His First Amendment Plea to the Supreme Court
Somewhat in jest, my earlier posts said that Taylor Bell really knows how to get his message out. Taylor Bell is a high school student who was suspended and sent to alternative school for writing and posting a rap song to the internet that outed coaches at his school who were accused of sexually harassing students. It now seems that he really did pick the perfect medium and genre to do so. Grammy award winning musicians have filed a brief in his support, upping the profile of the case even more and a potentially nudging the scales toward a grant of certiorari that would decide key speech issues in school that the Court has conveniently avoided for several years. Among the most notable names on the brief is Michael Render (aka “Killer Mike”). Cribbing from the brief: "His recent album with rapper and producer El-P, Run the Jewels 2, was the most critically acclaimed record of the year in 2014. When he isn’t recording or performing, he can be found in television studios or university lecture halls talking about a wide range of issues, particularly those related to race and social justice. He performs as Killer Mike—but for this brief, in particular, it probably is worth noting that he has never actually killed anyone."
They summarize their argument this way:
This Court should grant certiorari because the Fifth Circuit’s decision effectively denies First Amendment protections to rap music, arguably the most influential musical genre of the last 50 years. Using rap as his voice of protest, Taylor Bell recorded a song calling attention to serious problems facing students at his school.
In its ruling, the Fifth Circuit focused on the violent rhetoric in Bell’s song. Although the lyrics cited in the ruling are commonplace in rap and reflect some of the genre’s most basic conventions, the Fifth Circuit ruled that they were “threatening, harassing, and intimidating.” As a result, the Government punished a young man for his art—and, more disturbing, for the musical genre by which he chose to express himself.
“Under our Constitution, ‘esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.’” Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2733 (2011) (quoting United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 818 (2000)). Yet this did not apply to Taylor Bell.
. . . .
In attempting to censor Bell’s artistic expression, the school, and later the Fifth Circuit, essentially took aim at rap music, a sophisticated form of poetry that has served as an important vehicle for social commentary and political protest, particularly among young men and women of color. By taking Bell’s song lyrics literally rather than as forms of artistic expression, both the school and the Fifth Circuit essentially delegitimized rap as an art form that is entitled to full protection under the Constitution.
But rap most certainly is art. Like all poets, rappers privilege figurative language and employ a full range of literary devices. They also invent new words, invert the meanings of others, and lace their lyrics with dense slang and coded references that outsiders frequently do not understand. What’s more, rappers famously rely on exaggeration and hyperbole as they craft the larger-than-life characters that have entertained fans for decades.
Bell’s lyrics reflect these complex traditions. Told from the perspective of T-Bizzle—the fictional character created by Bell to narrate the song—PSK da Truth is intentionally provocative. But it draws on the conventions of mainstream rap, particularly the highly successful subgenre of “gangsta” rap.
As this brief discusses, the phrases deemed “threats” by the Fifth Circuit were, in actuality, wellworn rap lyrics borrowed—at times nearly verbatim—from some of music’s most successful and acclaimed performers.
Reading these violent lyrics as a type of autobiography ignores rap’s artistic conventions, thereby negating it as an art form, and perpetuates enduring stereotypes about the inherent criminality of young men of color, the primary producers of rap music. Studies establish that many people also harbor negative stereotypes about rap music that they do not have about other musical genres.
If our judicial system allows these stereotypes to go unchallenged, justice will continue to be elusive for those Americans most in need of a voice—a voice that rap music has given them.
Interestingly, I could see this brief as being one of the most helpful and informative the Court gets. Just as judges know far too little of the technology that are asked to adjudicate in patent and other disputes, I suspect they know relatively little of music, at least rap. As the brief makes clear, adjudicating this case on the face of the words spoken misses the whole point. Get the full brief here: Download Taylor-Bell-Amicus
Tuesday, December 15, 2015
Federal courts commonly find that live nativity scenes on school grounds violate the First Amendment's Establishment Clause. Consistent with that precedent, the Northern District of Indiana issued a preliminary injunction earlier this month enjoining a Indiana high school from "portraying a nativity scene during a musical Christmas show. Last weekend, the high school in the case, Concord High School, presented its Christmas show with a static nativity scene, a move that the plaintiffs in the case say exploited a loophole in the order to ignore the court's ruling. On December 2, the district court granted the request of the Freedom From Religion Foundation (FFFR) to enjoin "any portrayal of a scene that is composed of live performers as part of [the school's] Christmas" Spectacular shows." The district court agreed with the FFFR that the nativity would "convey a message of endorsement of religion to a reasonable observer," thus failing the requirement of government neutrality towards religion established in Lemon v. Kurtzman, 403 U.S. 602 (1971). The district court rejected the school's arguments adding projected pictures with symbols of Chanukah and Kwanzaa and having the band and choir perform a tribute to each holiday to the Christmas show made the nativity scene simply an educational reference to Christianity rather than an endorsement. The district court noted that although the nativity was on stage for twelve minutes out of the ninety-minute show, (about thirteen percent of the show), the other religions were three to four minutes and had no visual performance as part of the musical. In the school's potential defense for using mannequins in the weekend show, the court's opinion had rejected FFFR's argument that a performed nativity scene would necessarily endorse religion without considering the context in which that performance would take place. The case is Freedom From Religion Found. v. Concord Cmty. Sch., No. 3:15-CV-463 JD, 2015 WL 7776561 (N.D. Ind. Dec. 2, 2015).
Friday, November 20, 2015
Taylor Bell has filed his petition for certiorari with the Supreme Court. Taylor Bell was a Mississippi high school student who had heard that coaches at his school were sexually harassing female students. He says the school administration had been told before but did nothing, so he wrote a rap song and performed it on youtube to bring attention to the issue. He named coaches, recounted allegations, and made provocative allusions. Before performing the song, he offered this preface:
A lot of people been asking me lately you know what was my
reasoning behind creating P.S. Koaches. It's . . . something that's
been going on . . . for a long time  that I just felt like I needed to
address. I'm an artist . . . I speak real life experience. . . . The way
I look at it, one day, I'm going to have a child. If something like
this was going on with my child . . . it'd be 4:30. . . . That's just
how it is . . .
For his deed, he was suspended and sent to alternative school. According to the school district, "Taylor Bell did threaten, harass and intimidate school employees in violation of School Board policy and Mississippi State Law." Taylor won his case before a three judge panel of the Fifth Circuit, but it was reversed by the en banc panel. His petition to the Supreme Court is sure to draw a close look and will be supported by numerous amici.
Here is his summary of the case:
This case presents a First Amendment question of the utmost importance that has vexed school officials and courts across the country: whether this Court’s landmark decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), applies to students’ off-campus speech. This question arises with startling frequency in an age when students communicate primarily through online social media such as Facebook, Instagram, and Twitter. Only this Court can provide the guidance that students, parents, teachers, school administrators, and lower courts desperately need.
In a deeply fractured decision, the en banc Fifth Circuit held that the First Amendment allowed a Mississippi public high school to censor an 18-year-old senior’s entirely off-campus speech calling attention to sexual misconduct by school officials. Petitioner Taylor Bell composed, recorded, and posted to the Internet a rap song reporting that two of his school’s male teachers had sexually harassed and assaulted female students. Bell wrote the song over winter break, recorded the song at a professional studio, and uploaded the song to Facebook and YouTube from his personal computer at home. No one even heard the song at school, except one of the accused teachers at his own initiative.
Thursday, November 19, 2015
Addressing a first-year class at Georgetown University Law Center a few days ago, United States Supreme Court Justice Antonin Scalia shared his view that there is no fundamental Constitutional right of a parent to direct the education and upbringing of their children. This is not to say, however, that Supreme Court precedent does not protect such a right. In 1925 in Pierce v. Society of Sisters, the Court struck down an Oregon law requiring all children to attend public school. The Court indicated that, in not affording a parent the option of sending their child to a private school, the law “unreasonably interfere[ed] with liberty of parents and guardians to direct the upbringing and education of children under their control.”
Scalia’s rejection of such a right is based on his opposition to the use of substantive due process to enumerate rights. Because a parental right is “simply not in the Constitution,” Scalia says he “will not enforce it from the bench.” Consistent with his comments, Scalia dissented in Troxel v. Granville, a case dealing with third party visitation rights with children. There, Scalia reasoned that although the parental right to control the upbringing of their child is an inalienable right stated in the Declaration of Independence, the Constitution does not grant judges the right to rule on state laws that may interfere with a parental right.
Scalia’s reasoning is tied up in anti-Lochner reasoning. As some may painfully remember, the Lochner Era refers to Supreme Court decisions between 1897 and 1937 in which the Court aggressively curtailed government regulation of private industry, including the minimum wage, labor rights, and workplace safety. The Court struck down this regulation by reasoning that individuals have a fundamental liberty interest to engage in contract and that these regulations interfered with the right—i.e. an individual should be able to contract to work under any conditions that he is willing to accept. Pierce and a few other parental cases were decided during the Lochner Era. These cases were predicated on the notion that the government was interfering with the parents’ right to enter into a contract for education services.
This fundamental right to contract worked any number of mischiefs and was later repudiated, leaving cases like Pierce in doubt. In fact, much of modern jurisprudence is premised on not ever going back to the type of judicial activism and inconsistency we say during the Lochner Era. In that respect, Justice Scalia may be on firm ground. But the theory of the right to control the upbringing of one’s children has since been integrated into First Amendment doctrine of freedom of religion and speech. Pierce, for instance, could have just as easily been decided on freedom of religion grounds as freedom of contract. Freedom of religion is, of course, explicitly in the Constitution. I am a little surprised (or not) that Scalia would dismiss that reality.
Unfortunately, while incorporated into religion and speech, parental rights in education have grown increasingly complex in recent years. Catherine Ross offers a nice overview at 18 Wm. & Mary Bill of Rts. J. 991 (2010).
Monday, November 9, 2015
A new report by the Council on American-Islamic Relations (CAIR) finds that Muslim students experience high rates of bullying and discrimination in California's public schools. Among other things, the report calls on Congress to amend Title VI to include a prohibition on religious discrimination. While the CAIR is correct that Title VI does not prohibit religious discrimination, it is not always clear whether the discrimination against Muslim students is ethnic or religious discrimination. The Office for Civil Rights has tended to treat it as ethnic discrimination, which Title VI would prohibit. Regardless, the report's empirical findings are troubling:
Ultimately 55% of the American Muslim students surveyed reported being subjected to some form of bullying based on their religious identity. This is twice as high as the national statistic of students reporting being bullied at school. Many students experienced multiple types of bullying; however, the most common type of bullying American Muslim students faced was verbal at 52%.
CAIR-CA also considered gender-based differences in survey responses. Remarkably, more male students reported experiencing bullying. However, the percentage of females who reported experiencing discrimination by a teacher or administrator was slightly higher. Of the female respondents who wear a hijab, the Islamic headscarf, 29% reported being offensively touched by another student, and 27% reported being discriminated by their teacher.
There were also two key findings in the students’ responses to questions about their feelings regarding their school environment. The percentage of students who reported feeling that they were comfortable participating in class discussions about Islam or countries where Muslims live decreased 4 by 4 percentage points, from 80% in 2012 to 76% in 2014. Moreover, only 67% of students felt teachers and administrators were responsive to their religious accommodation requests. American Muslim youth continue to identify student-teacher relations as needing improvement. Many students’ comments referenced increased problems in the classroom during discussions about 9/11, mainly due to teachers either failing to address harassment by other students against Muslim students or discriminating against Muslim students themselves.
Tuesday, October 13, 2015
Last August I posted an announcement from the First Amendment Law Review (FALR) here at the University of North Carolina School of Law for submissions for brief but engaging articles related to free speech in higher education. They have now extended the deadline until January 8, 2016. Borrowing now from the announcement in August:
Tuesday, September 29, 2015
School Speech Shorts: School District Employees Entitled to Qualified Immunity in Facebook Search Suit; Univ. of Kansas Cannot Expel Student for Off-Campus Tweets
The Fifth Circuit recently reversed a district court's decision denying qualified immunity to officials of a Mississippi school district on a First Amendment claim. The case arose when a teacher in the Pearl Public Schools, who served as the school's cheer squad sponsor, coercively requested a student's Facebook log-in information, accessed her Facebook messages, and later punished the student by removing her from the cheer squad because of the messages' content. After the student was dismissed from the squad, her parents filed a § 1983 action alleging that school officials violated their daughter's First and Fourth Amendment rights by searching her messages. The Fifth Circuit held that the school officials were entitled to qualified immunity because the law was not “clearly established” when the incident occurred (September 2007) that searching a student's Internet messages would violate either the First or Fourth Amendments if the teacher was acting on a reasonable suspicion that that the student had posted threatening messages immediately after a school event. The finding of qualified immunity was compelled, the Fifth Circuit explained, by conflicting rulings in school search cases until the Supreme Court handed down Safford Unified Sch. Dist. No. 1 v. Redding in 2009. The circuit court likewise held that school officials had qualified immunity on the First Amendment claim, because they did not have "fair warning," given the available precedent, that removing the student from the cheer squad because the content of her Facebook messages would violate the First Amendment. Read the opinion in Jackson v. Ladner, No. 13-60631 (5th Cir. Sept. 15, 2015) here.
A Kansas appellate court held last week that University of Kansas had no authority to expel a student for posting sexually harassing tweets about another student even though the university had ordered him not to contact the other student. The harassing communications were done off-campus, and construing the University's student code, the court concluded that the "only environment the University can control is on campus or at University sponsored or supervised events." The case is Yeasin v. Univ. of Kansas, No. 113,098 (Kan. App. Sept. 25, 2015).
Wednesday, September 16, 2015
The Third Circuit recently upheld a summary judgment finding in a teacher’s retaliation claim after she was discharged after her derogatory comments about students gained national attention. The Third Circuit held that while the teacher’s speech may have touched on a matter of national concern, it caused sufficient disruption for the students and the school district to warrant the teacher’s discharge, and thus speech was not protected under Pickering v. Board of Education. The case arose when a teacher for a Pennsylvania school district, Natalie Munroe, began a blog entitled "Where are we going, and why are we in this hand basket?" In the blog, Munroe discussed personal matters but also complained about her students, her co-workers, and the school where she worked. She did not expressly identify either where she worked or lived, the name of the school where she taught, or the names of her students, but described students as the “devil’s spawn,” and “rat-like.” Students and the school district discovered the blog, and after complaints about Munroe’s professionalism, the school district assigned a “shadow teacher” to teach Munroe’s subject at the same times that Munroe did and allowed students to opt-out of Munroe’s class. Munroe meanwhile became a minor celebrity in the national media because of the views expressed on the blog. Eventually, the school district discharged Munroe, and she brought a retaliation claim under 42 U.S.C. § 1983, alleging that the district violated her First Amendment rights. She claimed that her termination based on her private blog and her media interviews. The Third Circuit found that Munroe’s national media interviews did not rise to the level of constitutionally protected expression, finding that “Munroe’s various expressions of hostility and disgust against her students would disrupt her duties as a high school teacher and the functioning of the School District.” The Third Circuit concluded that the district’s interest in eliminating Munroe’s disruptive speech and presence outweighed her “interest, as well as the interest of the public, in her speech.” Munroe v. Central Bucks School District, No. 14-3509 (3d Cir. Sept. 2015) is here.
Free speech and academic freedom have long exposed cultural and political tensions on college campuses. But in the past few years, those who would restrict free speech have seemingly gotten a foothold in the debate that they otherwise would have been laughed out of. In other words, they have managed to start a debate over long settled principles. They have been able to convince some universities and professors to include warnings or triggers on their syllabi. These triggers would warn students in advance about topics, books, and issues that they might find objectionable or offensive. Some students have even managed to get themselves exempted from certain readings and assigned alternatives. Some have complained to their legislators about being exposed to ideas they did not like and managed to get them to punish public universities by defunding certain programs. Some have gotten invited speakers uninvited because they were too controversial.
They now seem to have gotten the attention of presidential hopeful, Ben Carson, who appears to be taking up their cause. Speaking of his policy proposals for the Department of Education, he said: “I think the Department of Education should monitor institutions of higher education for political bias and withhold federal funding if it exists,” Carson told Las Vegas radio host Heidi Harris. Of course, political bias is not confined to one party, but the notion that a politician, rather than an academic, would be the arbiter of political bias is problematic to say the least, particularly if that politician comes from a party that has tended to resist things like the expansion of civil rights, the protection of free speech, and the calls for politically correct discourse.
Interestingly, President Obama jumped into the conversation this week. At a town hall meeting, he pushed back against Carson and the censorship occurring on campuses. In response to Carson, he said:
Tuesday, August 25, 2015
In 2012, Arizona law enacted legislation providing that “no school district or charter school in this state may endorse or provide financial or instructional program support to any program that does not present childbirth and adoption as preferred options to elective abortion.” This fall a sticker on the front of a biology textbook that promotes that agenda is raising eyebrows. Gilbert Unified School District placed this message on it biology textbooks:
The Gilbert Public School District supports the state of Arizona’s strong interest in promoting childbirth and adoption over elective abortion. The District is also in support of promoting abstinence as the most effective way to eliminate the potential for unwanted pregnancy and sexually transmitted diseases. If you have questions concerning sexual intercourse, contraceptives, pregnancy, adoption or abortion, we encourage you to speak with your parents.
The same group that pushed for this sticker was part of the push for the anti-gay legislation that made national news in Indiana, which brings us to anti-gay sex education in South Carolina.
Monday, August 24, 2015
Earlier this summer, California eliminated religious exemptions from school vaccinations, making it only the third state to do so. In my previous post on the legislation, I noted that on its face it might raise freedom of religion concerns, but one close examination it probably need only pass rational basis review. Dorit Rubinstein Reiss has posted a new article on ssrn, Vaccines, School Mandates, and California's Right to Education, that offers a much deeper analysis. The abstract offers this summary:
California recently enacted Senate Bill 277, which abolishes the personal-beliefs exemption to school immunization requirements. One possible challenge to the law’s constitutionality is that it impermissibly limits the right to education. This Essay rebuts such positions. California’s jurisprudence regarding access to education applies to protected categories; it does not limit the ability of the state to impose health and safety regulations such as immunization requirements. Moreover, the requirement would withstand even strict scrutiny, if applied, because disease prevention in the school context is a compelling interest and there is no alternative that is as effective. Finally, the law actually protects the right of access to education for those whose parents do not have the luxury of choice, such as immune-compromised children, while still reasonably preserving parental choice overall.
Wednesday, August 19, 2015
A growing number of reports reveal that schools are starting to more systematically monitor their students' social media. The most recent report is from Orange County in Florida, where the school district has purchased software that allows it to do keyword searches across multiple social media platforms for all students. Some have raise privacy concerns about this trend. Orange County, at least, does not appear to be crossing any privacy lines because it is only monitoring public posts. They are not attempting to gather students' passwords or anything of the like. The software simply allows the district to achieve efficiently what any other person with an internet connection could, if the person just had the time and energy to sift through everything.
The more important issues are what exactly districts do with this information. First, sometimes too much information is a bad thing. Consider the student who simply complains about his teacher online--something students have been doing in hallways, in cafeterias, on telephones, and in handwritten notes since forever. That information has had a very short shelf-life and rarely made it to the subjects of the complaints. It would be a bad thing if now that information got passed along. The likelihood that it could interfere with relationships is significant, while the harm that sharing that information would ward off is almost non-existent.
Friday, August 7, 2015
LaJuana recently posted on the Texas truancy reform legislation when it was enacted. Josh Gupta-Kagan followed up on the legislation and tipped me to an interesting detail regarding mandatory school attendance. The legislation raised the drop out age from 18 to 19. This move is also coincides with recent changes to compulsory attendance in Kentucky. The move to reduce dropout nationwide makes obvious sense, but it is not as simple as one might think.
Tuesday, July 28, 2015
A settlement has been reached in Barnes v. Zaccari, the long-running case in which a Valdosta State University (Ga.) student was expelled in 2007 after he protested the VSU president's plans to build a new parking deck. After a letter-writing campaign opposing the environmental impact of VSU's parking deck plans, student Thomas Barnes posted a collage on his Facebook page titled “S.A.V.E.—Zaccari Memorial Parking Garage” that included a portrait of then-VSU President Ronald Zaccari. (A copy of the collage can be found here.) Zaccari interpreted the word "memorial" to apply to deceased persons, therefore signaling that Barnes contemplated harm to him. He ordered that Barnes be "administratively withdrawn" from VSU because Barnes presented a “clear and present danger” to the campus. Barnes sued Zaccari in federal court, claiming violations of his due process and free speech rights. The district court denied Zaccari's summary judgment motion based on qualified immunity. A federal district court denied Barnes' First Amendment retaliation claim, finding that because it was pled as a conspiracy claim and VSU's administrators opposed Zaccari's actions, there was no agreement to form a conspiracy. In 2013, a federal jury found the collage was innocuous expression, finding Zaccari personally liable for $50,000 for violating Barnes's rights. In January 2015, the Eleventh Circuit held that the district court erred in granting summary judgment in Zaccari's favor on the First Amendment retaliation claim. Barnes v. Zaccari, 592 Fed.Appx. 859 (11th Cir. 2015). VSU apparently has decided that it is done fighting the case. Read more about the settlement at the Foundation for Individual Rights in Education here.
Monday, July 20, 2015
Court Holds Arizona's Ban on Ethnic Studies Violates First Amendment and Remands for Further Findings on Discrimination
The Ninth Circuit has issued its decision in Arce v. Huppenthal. The case arises out of the 2010 ban on Mexican American Studies programs in Arizona. The legislature passed A.R.S. § 15-112(A), which prohibits school districts and charter schools from having educational programs that: (1) “Promote the overthrow of the United States government,” (2) “Promote resentment toward a race or class of people,” (3) “Are designed primarily for pupils of a particular ethnic group,” or (4) “Advocate ethnic solidarity instead of the treatment of pupils as individuals.”
The Ninth Circuit held that § 15-112(A)(3) violates the First Amendment due to overbreadth, but held that §§ 15-112(A)(2) and (A)(4) were constitutional. The trickier analysis in regard to plaintiffs' motivations. Plaintiffs' alleged that the legislation was racially or ethinically motivated and motivated by viewpoint discrimination. The former would violate the Fourteenth Amendment and the latter the First Amendment. The district court had granted the defendant's motion for summary judgment on the the equal protection and view point discrimination claims. The Ninth Circuit reversed and remanded, finding there were "genuine issues of fact regarding whether the enactment and/or enforcement of § 15-112 was motivated at least in part by a discriminatory intent." The court noted it is undisputed that “the statute was enacted almost entirely” to shut down the Mexican American Studies program in Tuscon.
Friday, July 3, 2015
On Tuesday, California Governor Jerry Brown signed legislation eliminating personal and religious belief exemptions from public school vaccinations. The new law makes California's vaccination law one of the most stringent laws in the country. The new law, taking effect January 1, 2016, mandates all children provide proof of vaccination for communicable diseases in order to attend school in California. The only exemptions are for medical reasons and must be approved by the State Department of Health.
California is only the third state to eliminate religious and personal belief exemptions for vaccinations. The legislation comes in the aftermath of a measles outbreak linked to Disneyland in California earlier this year. Supporters of the new law advocate that it will protect those children too young or sick to be vaccinated, while opponents of the law say it unfairly restricts parental choice.
Wednesday, July 1, 2015
On Monday, the Supreme Court of Colorado in Taxpayers for Public Education v. Douglas County School District struck down a voucher program in Douglas County, finding that the Choice Scholarship Pilot Program violated separation of church and state doctrine under the state's constitution. The ruling reversed the decision in Taxpayers for Public Education v. Douglas County School District, a 2013 Colorado Court of Appeals decision upholding Douglas County’s voucher program.
The voucher program awarded taxpayer money to students who could use that money to pay for private schools, including some religious schools. The court found that, in doing so, the voucher program facilitated students attending religious schools and amounted to aid of religious institutions. This violates the state constitutional provision that prohibits government aid to “any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school ... controlled by any church or sectarian denomination.” The Supreme Court of Colorado remanded the case, directing the lower courts to reinstate an order permanently enjoining the program.
This holding based on state law is, of course, in contrast to the U.S. Supreme Court holding in Zelman v. Simmons-Harris. There the Court held that voucher program in Cleveland, Ohio, did not violate the First Amendment, notwithstanding the fact that the program almost exclusively sent kids to private religious school. Many state constitutions have provision that are more restrictive of the flow of public money to religious institutions.
Thursday, June 25, 2015
The Foundation for Individual Rights in Education has released it annual report on the state of free speech on college and university campuses. The Foundation examined 437 schools and "found that more than 55 percent maintain severely restrictive, 'red light' speech codes—policies that clearly and substantially prohibit protected speech. Last year, that figure stood at 58.6 percent; this is the seventh year in a row that the percentage of schools maintaining such policies has declined." Only five percent of schools, however, actually affirmatively protect speech.
One of the worst offenders was Missouri, where "over 85 percent of schools surveyed received a red light rating." Virginia and Indiana were among the best, with "only 31 percent and 25 percent of schools surveyed . . .receiv[ing] a red light rating." The Foundation attributes Virginia's numbers to recent legislation "designating outdoor areas on the Commonwealth’s public college campuses as public forums. Under the law, Virginia’s public universities are prohibited from limiting student expression to tiny 'free speech zones' or subjecting students’ expressive activities to unreasonable registration requirements."