Tuesday, July 25, 2017

Scholarship: Re-Conceptualizing the Response to Campus Sexual Violence in a Closed Institutional System

Campus sexual assault is being discussed in the mainstream media recently following Education Secretary Betsy DeVos's statement that the ED's current guidelines to campuses are not adequately protecting students accused of sexual assault and statements by the acting assistant secretary for civil rights stating that Title IX rules result in false accusations. In their essay, Toward a Civilized System of Justice: Re-Conceptualizing the Response to Sexual Violence in Higher Education, authors Hannah Brenner (California Western) and Kathleen Darcy (Michigan), raise a different aspect of the problem: that the closed institutional nature of higher education settings add to the difficulty of holding people accountable for campus sexual assault. The authors view campuses through the characteristics of prison and the military, and conclude that colleges' quasi-closed system may hinder "crafting better remedies to both prevent and reform the response to sexual violence." The essay is Toward a Civilized System of Justice: Re-Conceptualizing the Response to Sexual Violence in Higher Education, 102 Cornell L. Rev. Online 127 (2017), and is available here.

July 25, 2017 in Scholarship | Permalink | Comments (0)

Wednesday, July 19, 2017

Education Law Section Announces Call for Papers on Law, Politics, and Public Universities

The Association of American Law Schools' Education Law Section has announced a call for papers for its 2018 Annual Meeting session, “Law, Politics, and the Public University,” co-sponsored by the Sections on Constitutional Law and State and Local Government Law. The selected paper will be presented during AALS at a panel addressing topics such as the First Amendment, sanctuary campuses, student debt and higher education financing, for-profit colleges, admissions policies, and the demographics of higher education.

The selected paper will be chosen by the Education Law Section executive committee, and presented during AALS on Thursday, January 4, 2018, from 1:30 to 3:15 pm. The paper selected may have the option of publishing with the Fordham Urban Law Journal, although publication in that journal is not a requirement of participation. Authors interested in this opportunity should so note on their submission. Submissions should be emailed to Professor Eloise Pasachoff at eloise.pasachoff@law.georgetown.edu by Friday, August 25, 2017.

July 19, 2017 in Conferences | Permalink | Comments (0)

Monday, July 17, 2017

The Compromise That Secured a Constitutional Right To Education

In my forthcoming article, The Constitutional Compromise to Guarantee Education,
Stanford Law Review, I argue that, contrary to popular belief, our federal constitution does protect a right to education.  I base the argument on congressional debates, state constitutional conventions, and the new state constitutional amendments that states passed in the conjunction with ratifying the Fourteenth Amendment to the U.S. Constitution.  

On one hand, the right lays in plain sight.  On the other, it has been overlooked due to the complexity of the ratification process and subsequent historical events that sought to overturn the substance and effect of the Fourteenth Amendment.

The abstract offers this summary:

Although the Supreme Court refused to recognize education as a fundamental right in San Antonio v. Rodriguez, the Court in several other cases has emphasized the possibility that the constitution might afford some protection for education. The Court, however, has never explained why the constitution should protect education.

New litigation is attempting to capitalize on the Court's sympathy toward education, but convincing the courts will still require a compelling affirmative constitutional theory. This Article offers that theory, demonstrating that the original intent of the Fourteenth Amendment was to guarantee education as a right of state citizenship. This simple concept has been obscured by the unusually complex ratification of the Amendment. But this article, relying on primary sources, reveals that providing public education was a condition of southern states' readmission to Union and was incorporated into the meaning of the Fourteenth Amendment. As a right of citizenship, this Article also theorizes that the Fourteenth Amendment prohibits states from partisan and other illegitimate manipulations of educational opportunity--some of which have continued to this day.

Read the full draft here.

July 17, 2017 | Permalink | Comments (0)

Friday, July 14, 2017

New Sheriff, New Rules? By Jonathan D. Glater


There is a certain irony in the choice of tactics in last week’s lawsuits filed in response to the Education Department’s effort to back away from Obama-era rules that created a process for indebted students to get out of their loan repayment obligations if the institution they attended made false or misleading statements.  The 19 states that filed a federal lawsuit in Washington, D.C., are making the same kind of argument that for-profit higher education providers used in their lawsuit against prior efforts to regulate in this area.

In their complaint, the states, which include Massachusetts, California, and New York, charge that the Department’s effort to postpone implementation of the rules violates the Administrative Procedures Act, or APA. 

(The Department’s move was announced in a press release, and a prior blogpost assessing it is here.  The rules at issue, which were announced in October and were to take effect on July 1, are here.)

While the Department justified the decision to delay implementation of the rules by citing pending litigation filed by the California Association of Private Postsecondary Schools, the states argued in their complaint that not every rule subject to delay had been targeted in the trade group’s lawsuit.

According to the states, the Department’s delay of the rule must itself be subject to notice and comment, like any new rule, and the Department’s failure to do so constitutes a violation of the APA.  Through litigation, the states hope to have a judge order implementation of the rules.

To appreciate the irony, you have to let your mind wander way back to 2011.  That’s when the Association of Private Sector Colleges and Universities sued the Education Department to block implementation of the “gainful employment” rules, which among other things would have imposed penalties on institutions if the ratio of their students’ debt to income exceeded a specified level.  The trade group’s lawsuit succeeded in delaying full implementation of the rules; if you want the gory details, the trial court decision was Association of Private Colleges and Universities v. Duncan, 870 F.Sup. 2d 133 (2012). 

The Department re-developed the rules, which the trade group immediately sued to block.  The new version of the gainful employment rules survived a set of legal challenges by the trade group, culminating in an opinion by the D.C. Circuit Court of Appeals (Association of Private Sector Colleges and Universities v. Duncan, 640 Fed. Appx. 5 (2016)).

The irony arises because in both sets of challenges to those rules, what provision of what law did trade group rely on?  You guessed it:  The same provision of the Administrative Procedures Act. 

The trade group argued that each version of the gainful employment rules was “arbitrary and capricious,” the magic phrase from the Act, which at 5 U.S.C. §706(2) requires a reviewing court to “hold unlawful and set aside agency action, findings, and conclusions found to be… (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 

The states contend that the delaying of the rules is arbitrary and capricious and otherwise flawed.  So to protect a more recent regulatory effort, the states are using the same tactic that was used to attack a prior one. 

Whether a new sheriff in town can impose new rules will thus depend on whether the courts find that the new sheriff played by the rules. 

July 14, 2017 in Higher education | Permalink | Comments (0)

Tuesday, July 11, 2017

Scholarship: A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty

Nancy Cantalupo, and William Kidder have posted their article, A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty on SSRN. (Utah Law Review, forthcoming). From the Abstract:

This article represents the most comprehensive effort to inventory and analyze actual faculty sexual harassment cases. This review includes nearly three hundred cases obtained from: (1) media reports; (2) federal civil rights investigations by the U.S. Departments of Education and Justice; (3) lawsuits by students alleging sexual harassment; and (4) lawsuits by tenure-track faculty fired for sexual harassment. Two key findings emerged from the data. First, contrary to popular assumptions, faculty sexual harassers are not engaged primarily in verbal behavior. Rather, most of the cases reviewed for this study involved faculty alleged to have engaged in unwelcome physical contact ranging from groping to sexual assault to domestic abuse-like behaviors. Second, more than half (53%) of cases involved professors allegedly engaged in serial sexual harassment.

July 11, 2017 in Scholarship | Permalink | Comments (0)

Call for Papers for 2017 Scholarship Conference by Central States Law School Association

The 2017 Central States Law Schools Association invites law faculty to submit proposals to present papers or works in progress for its 2017 Scholarship Conference. CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. The Scholarship Conference will be held on Friday, October 6 and Saturday, October 7 at Southern Illinois University School of Law in Carbondale, Illinois.  The deadline for registration is September 2, 2017.  More information about CSLSA and the 2017 Annual Conference is available at CSLSA’s blog. Click here to register.

July 11, 2017 in Conferences | Permalink | Comments (0)

30 Years after Edwards v. Aguillard: Why Creationism Lingers in Public Schools By John Taylor

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In 2013, pro-science supporters rallied before a Texas Board of Education public hearing on proposed new science textbooks. AP Photo/Eric Gay
John E. Taylor, West Virginia University

This month marks the 30th anniversary of the U.S. Supreme Court’s decision in Edwards v. Aguillard, a groundbreaking case that ruled it unconstitutional to require creationism to be taught in public schools.

Though much has changed in 30 years, the broad questions raised by this case remain timely. Who gets to decide what knowledge will be transmitted to the next generation – parents? Elected officials? Academic experts? What role (if any) should the courts play in policing such decisions?

As a scholar of education law and First Amendment law, I’ve seen these very questions animate curricular controversies over climate change, American history, and more.

While recent debates seem to share a common structure with controversies about the teaching of evolution, there’s a key difference: Edwards v. Aguillard stands not for the broad idea that it’s unconstitutional for public schools to teach “bad science,” but for the narrower idea that it’s unconstitutional for them to teach religion as truth.

A century of science and religion

In 1883, illustrator Joseph Ferdinand Keppler envisioned a future where religion and science were one. Puck, via Library of Congress

Some conservative religious believers – mainly fundamentalist or evangelical Protestants – have long viewed Darwin’s ideas as incompatible with their faith. Consequently, they’ve resisted the undiluted teaching of evolutionary theory in public schools.

Early resistance took the form of statutes criminalizing the teaching of evolution, most famously the Tennessee ban at the heart of the famous “Scopes Monkey Trial” of 1925.

In the next four decades, the legal playing field changed dramatically. The Supreme Court applied the Constitution’s Establishment Clause to the states in 1947, initially reading the clause to require the “separation of church and state.” In the early 1960s, cases banning school-sponsored classroom prayer and devotional Bible reading interpreted the separation of church and state to mean that schools could teach about religion, but they couldn’t constitutionally teach religion as true.

It followed that teaching the biblical creation story as a true account of human origins was out of the question. The Supreme Court put a categorical end to Tennessee-style “monkey laws” in its 1968 decision in Epperson v. Arkansas.

Biology teacher Susan Epperson challenged Arkansas’ ban on the teaching of the theory of evolution. Little Rock Central High School, Arkansas, Aug. 13, 1966. AP Photo

In 1971’s Lemon v. Kurtzman, the Supreme Court solidified its views on church-state separation by adopting a three-prong “test” to determine whether laws violated the Establishment Clause. To be constitutional:

  1. A law must have a secular legislative purpose.
  2. Its primary effect must neither advance nor inhibit religion.
  3. It must not foster excessive government entanglement with religion.

Lemon’s support on today’s Supreme Court is much weaker than it was 40 years ago, but it has been the dominant test employed in the case law on creationism and evolution.

Can we teach a bit of each?

Why, then, didn’t the Supreme Court’s adoption of the Lemon test close the book on creationist teaching once and for all? The answer, in a nutshell, is that creationism went underground.

Once the state could neither teach biblical creationism nor categorically forbid the teaching of evolution, creationists turned to new strategies.

The first post-Epperson wave of resistance involved a number of state legislatures that required the “balanced treatment” of both evolution and “scientific creationism” in the science classroom. Students would be presented with two “scientific” accounts side by side and could make up their own minds.

Yet, for this strategy to succeed, proponents needed to convince courts that “scientific creationism” was more than just Sunday school in disguise. In McLean v. Arkansas (1982), a federal district court struck down Arkansas’s balanced treatment law, ruling that it merely omitted biblical references without actually changing the religious purpose of the law. The court also developed a definition of “science” and concluded that “creation science” did not satisfy it.

Edwards v. Aguillard

Supreme Court Justice Antonin Scalia wrote the dissenting opinion in Edwards v. Aguillard. Today’s court is likely more sympathetic to Scalia’s views of the Establishment Clause. AP Photo/Lana Harris

In 1981, Louisiana passed the “Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act.” Though similar to the law struck down in McLean v. Arkansas, Louisiana lawmakers took extra steps to attempt to cleanse religion from their law after Arkansas’s balanced treatment act had been challenged in court.

Under the law’s terms, no school was required to teach either evolution or creation science, but if one were taught, the other had to be taught as well. The declared purpose of the law was protecting “academic freedom.”

On June 19, 1987, the Supreme Court ruled 7-2 in the case of Edwards v. Aguillard that the Louisiana law was unconstitutional. Writing for the court, Justice Brennan explained that the act had no secular purpose – and thus violated the first prong of the “Lemon test.” Further, Brennan rejected the act’s purported purpose of protecting academic freedom:

“The Act actually serves to diminish academic freedom by removing the flexibility to teach evolution without also teaching creation science, even if teachers determine that such curriculum results in less effective and comprehensive science instruction.”

‘Teaching the controversy’

Like Epperson v. Arkansas, the Edwards case was a decisive Supreme Court defeat for anti-evolution forces.

As creationists came to understand that the Supreme Court would not approve laws with religious agendas so close to the surface, many shifted their focus to more subtle tactics, which involved some version of “teaching the controversy” regarding evolution. One strategy was to adopt disclaimers explaining to students that evolution was a “theory, not a fact” or that teaching evolution was “not intended to influence or dissuade the Biblical version of Creation.” Courts uniformly ruled against these disclaimers.

Kitzmiller v. Dover School District (2005), the best-known post-Edwards case, addressed the strategy of substituting “intelligent design theory” for “scientific creationism.” A Pennsylvania school district’s evolution disclaimer included the suggestion that students consider the theory of “intelligent design” as developed in the textbook, “Of Pandas and People.

A federal judge barred the Dover, Pennsylvania school district from teaching ‘intelligent design’ in biology class, saying the concept is creationism in disguise. AP Photo/Bradley C Bower

Intelligent design proponents argue that mutation and natural selection cannot adequately explain the emergence of “irreducibly complex” biological structures; such structures must have been designed. Officially, the “designer” could have been anyone – a space alien, perhaps – thus “intelligent design” is claimed not to be religious in character.

The district court, however, soundly rejected these arguments. As had the court in McLean v. Arkansas, the Kitzmiller court discussed the nature of science and concluded that intelligent design was not science.

The legacy of Edwards today

Courts have been remarkably consistent in rejecting creationist efforts to undermine the teaching of evolution. It’s tempting to see these cases as a sign that courts will protect the integrity of science and of academic judgments generally. (One might think, for example, that courts would just as readily step in when political actors reject the teaching of mainstream climate science in public schools.) But the cases don’t sweep so broadly.

In 2011, Joe Zamecki protests outside a building where the Texas Board of Education was considering how the next round of science textbooks should address issues of creationism and climate change. AP Photo/Eric Gay

Even in cases where courts explicitly state that creationism/intelligent design is not science, they make this point only as a step toward the critical point that creationism is religion. In other words, courts do not weigh in on whether science lessons must be supported by mainstream scientific experts, only that religious views can’t be taught as science.

Respect for academic expertise is incredibly important. One might argue, as Robert Post has done, that the expertise fostered by academic disciplines deserves First Amendment protection. But the courts aren’t there yet.

Recent efforts to undermine the teaching of evolution have mainly taken the form of so-called “academic freedom” or “science education” bills, which have been proposed in a number of states and have passed in Louisiana (2008) and Tennessee (2012).

These bills exploit an opening left by Edwards v. Aguillard: Teachers are not required to teach creation alongside evolution; rather, they’re given the “academic freedom” to emphasize critiques while teaching evolution in their science classes. The bills downplay religion by not mentioning the topic of evolution or by mentioning it alongside other controversial topics like climate change.

Legal precedent would not allow public school teachers to explicitly use this “academic freedom” to undermine science education in favor of religion. However, it’s difficult to know how many teachers are choosing to do so – and whether those choices have anything to do with the legislation.

The ConversationEdwards v. Aguillard struck an important blow for science education, and it fundamentally reshaped the tactics available to creationists. Its influence on these fronts has been significant and laudable, but its reasoning is heavily reliant on historical links to old-school creationism and on a conception of the separation of church and state that’s stricter than the likely views of current Supreme Court justices. These points limit the case’s ability to speak to the full range of curricular problems we confront today.

John E. Taylor, Professor of Law, West Virginia University

This article was originally published on The Conversation. Read the original article.

July 11, 2017 | Permalink | Comments (0)

Monday, July 10, 2017

Scholarship: Reconciling Liberty and Equality Interests in Education Cases; Applying O'Bannon v. NCAA

Joshua Weishart, Equal Liberty in Proportion (forthcoming William & Mary Law Review)

Joshua Weishart (West Virginia) encourages state courts to balance both liberty and equality in addressing state constitutional claims of education disparities. The article is available on SSRN here. Excerpted from the abstract:

This Article proposes that courts analyze the state constitutional right to education as a claim for “equal liberty” and subject it to a new standard of review. State court adjudication of the right to education over the past five decades reflects ambivalence with heightened scrutiny in favor of an ad hoc means-ends review. That review confers substantial deference to legislative judgment and has excused persistent educational disparities based on the “reasonableness” of legislative efforts. To overcome these shortcomings and lingering justiciability concerns, courts need a principled methodology for reconciling liberty and equality interests.

Against tradition calling for these interests to be “balanced,” I contend that equality and liberty can yet maintain a positive, directly proportional relationship in the law. Applying direct-proportionality review, the judicial lens should focus on whether the state’s actions advance both equality and liberty interests in tandem and whether the margin between these ends is proportional so as to protect children from the harms of educational disparities.

Matt Mitten, Why and How the Supreme Court Should Have Decided O'Bannon v. NCAA (Antitrust Bulletin)

Matt Mitten (Marquette) suggests ways to apply the Ninth Circuit's decision in O'Bannon v. NCAA after the Supreme Court failed to grant certiorari in the case to resolve confusion about how antitrust law constrains the NCAA’s governance of intercollegiate athletics. Below is an excerpt from the abstract, which is available on SSRN here:

Despite requests by both parties, the United States Supreme Court refused to grant a writ of certiorari in O’Bannon v. NCAA, the first federal appellate court decision holding that an NCAA student-athlete eligibility rule violates section 1 of the Sherman Act. This article makes some recommendations for applying section 1 to NCAA student-athlete eligibility rules and input market restraints, which will better promote consumer welfare, protect student-athletes’ economic rights, and permit the NCAA to promote the unique features of intercollegiate sports without unwarranted judicial micromanagement.

July 10, 2017 in Scholarship | Permalink | Comments (0)

Deliberate Indifference to a Hostile Environment: A Call for Attorneys to Protect Vulnerable Students By Nancy Willard

Public school districts violate federal civil rights laws when discriminatory harassment of students based on race, color, national origin, sex, or disability is sufficiently serious to create a hostile environment that is interfering with the students’ rights to receive an education, and school staff encourage, tolerate, do not adequately address, or ignore such harassment.

An unacceptably high number of students in public schools in the U.S. are suffering from daily bullying and harassment by their peers--and sometimes school staff. This emotional, and sometimes physical, abuse is known to have a life long harmful impact and to significantly interfere with the targeted students’ ability to receive an education.

While bullying and harassment of students has received a higher degree of focus in recent years, there is no evidence of any significant decrease in the number of students reporting being bullied and harassed. In fact, in some states, it appears that the approach promoted by the state’s anti-bullying statute is having an opposite effect.

For example, in the state of New York, the much-touted Dignity Act for All Students (DASA) was enacted in 2010. On the Youth Risk Behavior Survey in 2011, 18% of New York students reported being bullied. By 2015, this rate had increased to 21%. Under DASA, schools are required to make annual public reports of the number of bullying incidents--a black-mark on the school. In the 2015-16 school year, 71% of New York City schools reported zero bullying incidents.

The approach incorporated into state statutes has created the misperception that all educators must do is have rules in place against bullying, tell students to report, and have the principal investigate, respond with discipline if appropriate, and keep records. This approach has been set into place at the same time that schools are under strong pressure to reduce disciplinary consequences. Thus, there is strong pressure on principals and staff to avoid ever considering hurtful acts of students to constitute “bullying.”

Students and their parents do not know how to retain data and report these incidents in accord with the tight definition in the statutes. Students who are being treated badly, sometimes on a daily basis, are too often told they are overreacting and there is nothing the school can or will do. It is no wonder that the majority of students who are harassed have often gotten to the point where they will not report these incidents. They know from experience that there is nothing the school will do--or reporting could make things far worse.

Under federal civil rights regulations, if a hostile environment is known to exist, schools are required to both investigate and intervene in the specific instances of which they have knowledge and to take necessary steps to correct the hostile environment that underlies the hurtful behavior.

An excellent publication is by the U.S. Department of Education’s Office for Civil Rights (OCR), entitled Protecting Students from Harassment and Hate Crime: A Guide for Schools (now out of date due to changes in the approach to gender role stereotyping). OCR did an excellent job in explaining the importance of a focus on school climate and outlining recommended steps a school should take.

The National School Board Association (NSBA), in an endorsement statement, was in full agreement:

Research indicates that creating a supportive school climate is the most important step in preventing harassment. A school can have policies and procedures, but these alone will not prevent harassment. This is the kind of good preventive work the field needs to help ensure that schools provide a safe and welcome environment for all students.

The leading Supreme Court case addressing student-on-student harassment is Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S. Ct. 1661 (1999). In this case, SCOTUS stated:

Schools can be held financially liable if they are deliberately indifferent to known acts of student-on-student harassment and the harasser is under the school’s authority so long as the harassment is so severe, pervasive, and objectionably offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.

In an early case, Vance v. Spencer Cnty. Pub. Sch. Dist. 231 F.3d 253, 261 (6th Cir. 2000), the Sixth Circuit enunciated helpful guidelines:

Although no particular response is required, and although the school district is not required to eradicate all sexual harassment, the school district must respond and must do so reasonably in light of the known circumstances. Thus, where a school district has knowledge that its remedial action is inadequate and ineffective, it is required to take reasonable action in light of those circumstances to eliminate the behavior. Where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances.

Unfortunately, a recent trend in the case law has been to dismiss cases upon a showing that every time the student reported, the principal investigated and applied discipline, if deemed appropriate. Stiles v. Grainger County, Tenn. MiLW, No. 01-91360 (6th Circuit, March 25, 2016) and S.B. v. Harford County, No. 15-1474 (4th Circuit, April 8, 2016).

In these two cases, despite evidence of ongoing, extensive harassment, which the students occasionally reported, all the principals did was respond to the specific reported instances. The interventions by the principals were clearly ineffective in stopping the ongoing harassment and no comprehensive steps were taken to correct the hostile environment that clearly existed.

At this time, the NSBA has switched from its prior clear statement of the ineffectiveness of sole reliance on policies and procedures and now argues that if the principal responds in any way to the incidents the harassed student has bravely reported, the school should not be considered deliberately indifferent or be held liable.

In ongoing harassment situations, this level of response by the school principal will generally be ineffective in correcting the specific hurtful situations and does nothing to correct the hostile environment that is fueling the ongoing harassment. In these kinds of cases, greater attention must be paid to the failure of the principals to follow up to ensure effectiveness of their interventions, as well as their failure to engage the school community in comprehensive efforts to correct the evident hostile environment.

The regulations and evidence that raises the importance for a more comprehensive approach, that incorporates ongoing assessment of effectiveness, is readily available in the civil rights regulations and OCR guidance, as well as current academic research and guidance for schools--along with the above NSBA quote.

Unfortunately, at this point in time, there appears to be no other mechanism to exert influence on schools to take the concerns of discriminatory harassment more seriously than increased successful litigation against school districts.

Nancy Willard, M.S., J.D., has advanced degrees in special education and law. For over the last decade, she has focused her professional attention on concerns of digital safety and bullying. She has prepared a 90-minute video training for attorneys, which may, depending on the state, qualify for CLE credit. More information is available here

July 10, 2017 in Discipline, Discrimination | Permalink | Comments (0)

Thursday, July 6, 2017

Pa. Supreme Court: District's Policy to Appeal Tax Assessments of Apartment Complexes Instead of Single-Family Homes Violates the State Constitution

The Pennsylvania Supreme Court recently held that commercial property owners stated a valid claim that school districts' decision to selectively appeal only commercial property assessments, such as apartment complexes, while choosing not to appeal the assessments of other types of property, such as  single-family residential homes, violated the state constitution's tax uniformity clause (Pa. Const. art. VIII, §1). The state supreme court reversed the dismissal of the commercial property owners' complaint and remanded the case for further proceedings. In Valley Forge Towers v. Upper Merion SD, No. 49 MAP 2016 (Pa. Jul. 5, 2017), commercial property owners sued the Upper Merion School District when the district, in appealing the value of under-assessed property, targeted apartment complexes because commercial property would produce more tax-revenue than under-assessed single-family homes. The district also acknowledged that it wished to avoid upsetting parents (and potential voters) by appealing single-family home assessments, even though eighty percent of the district's single-family homes were under-assesssed. The commercial property owners' complaint was dismissed on a demurrer. On appeal, the Pennsylvania Supreme Court noted that the state constitution's tax uniformity clause incorporates the same equal protection analysis as the Equal Protection Clause of the United States Constitution. The court rejected the school district's argument, however, that it needed only to provide a rational basis for the deliberate and selective discrimination between commercial and single-family properties. The supreme court held that the district's appeal policy violated the Uniformity Clause, which "prohibits disparate treatment of sub-classifications of property in order to avoid political accountability employed by a taxing district lies within its discretion." Because the commercial property owners sufficiently alleged such discrimination, the court found that their complaint set forth a valid claim that the school district’s appeal policy violated the Uniformity Clause. Valley Forge Towers v. Upper Merion SD, No. 49 MAP 2016 (Pa. Jul. 5, 2017) is available here.

July 6, 2017 in Cases | Permalink | Comments (0)

Wednesday, July 5, 2017

Fifth Circuit Holds That Recitation of Mexican Pledge In Spanish Class Not Compelled Student Speech

The Fifth Circuit held last week that requiring that students perform the Mexican Pledge of Allegiance as an assignment for a Spanish language class, and the school's actions afterwards, did not violate the First Amendment. In Brinsdon v. McAllen Independent Sch. Dist., 15-40160 (5th Cir. 2017), a teacher required students to memorize and recite in Spanish the Mexican Pledge of Allegiance. A student, Brinsdon, objected to reciting the Mexican Pledge because she felt pledging allegiance to a foreign country was wrong. The student was allowed to substitute an alternative writing assignment, for which she received a "C" grade.  Because students who did the recited the Mexican Pledge received "A"s, Brinsdon suspected that her grade was retaliatory. Brinsdon surreptitiously filmed her fellow students reciting the Mexican pledge in class, using a spy pen given to her by her father. The father then sent the filmed footage to media outlet The Blaze, which in turn posted the recording to YouTube. Brinsdon and her family were subsequently interviewed by Fox News and Glenn Beck, which brought national publicity to the school, much of it hostile. She was removed from Spanish class for the rest of the semester and completed the class assignments in the school office. Brinsdon, who graduated in 2014, filed suit in the Southern District of Texas, claiming that her First Amendment rights were violated when she was compelled to recite the pledge and that she was retaliated against when she was removed from class and that she suffered disparate treatment under the Equal Protection Clause when she was removed from class. The federal district court below allowed the equal protection and compelled speech claims to proceed to trial and later found granted the district a judgment as a matter of law. On appeal, the Fifth Circuit held that the school officials were entitled to qualified immunity as they did not ignore "clearly established law when compelling a non-operative recitation of the Mexican pledge." The court distinguished this case from West Virginia State Bd. of Educ. v. Barnette (1943), which rejected state law requiring daily recitation of the U.S. Pledge of Allegiance in class, by noting that Brinsdon's assignment did not require allegiance to Mexico or suppressed her ability to express her beliefs by adopting those of others. Simply put, the circuit court relied on Tinker v. Des Moines (1969) to permit schools to require recitation of alternative beliefs for "legitimate pedagogical reasons." Turning to the retaliation claims, the court determined that the timeline of Brinsdon's removal was unclear on the record, but the reason for the underlying disruption of school activities was not Brinsdon's media appearances, but the publication of the unauthorized video of the students, which is not a protected First Amendment right. The court also found that the teacher and principal were entitled to qualified immunity. The case is available here.

July 5, 2017 in Cases, First Amendment | Permalink | Comments (0)