Wednesday, May 30, 2018

When Parents' Rights to Their Children Collide with Schools' Power to Exclude Them from the Building

Student-parent_audience_(6936482183)As a practicing civil rights attorney, I came to know all too well of schools’ power to exclude parents from schools.  As a professor and observer of cultural changes, I have heard of even more stories.  The issue presents a double edged sword.  On the one hand, schools need to maintain a safe and orderly environment. Some parents would seem to have the school revolve around them and, when things do not go their way, they will not for one moment accept the notion that their child might be less than perfect or that the school acted appropriately.  Sometimes those parents might be intimidating and disruptive.  Just as the Court in Tinker v. Des Moines held that a school can suspend a student who substantially disrupts the learning environment, I have no doubt that a school can and should remove certain parents.

But there is another side. Sometimes a school may discriminate against a student by its failure to check racial bias in the school, by its failure to provide federally required disability services, by its failure to provide English Language Learner services, and by its failure to stop sexual harassment.  Parents who recognize these problems undoubtedly make demands of the school, and rightly so. This underlying problem can lead to a high level of tension between the parent and the school.  Professional administrators work through this tension.  Some, however, use their power to exclude parents.  This, it seems, can be an abuse of power.

These two sides of the issue are what makes a recent district court decision out of Idaho, Zeyen v. Pocatello/Chubbuck School District #25, so interesting.  The case involves a non-custodial father’s attempt to access school property and interact with school officials.  The short story is that when he arrived to pick his daughter up from school one day, he was met with some resistance.  He was asked to present his divorce decree and eventually ordered to leave the school, after which he yelled all the way out.

Later that day, the superintendent wrote a letter prohibiting the father from “entering upon any property or school building of the District” and attending “any school-related activities” until he received “further written notice from this office.” It directed him that “[a]ny future communication will be limited to email and/or written mail through this office.”  Finally, the letter stated that, in the future, “your presence on school property [will be reported] to the Pocatello Police Department School Resource Officers.” 

What makes the case interesting is not the factual dispute itself, but the district court's clear parsing of the issues and statement of the law.  The two major rights at issue were the fundamental right of a parent to control the upbringing of the child and the First Amendment right to access public forums, petition government, and vote.  The court distinguished those larger rights from the narrower right to enter school property as a general matter.

The court wrote:

The Supreme Court has explicitly characterized “the liberty of parents and guardians to direct the upbringing and education of children under their control” as a “right[ ] guaranteed by the Constitution.” Pierce v. Soc'y of the Sisters, 268 U.S. 510, 534–35 (1925). The Supreme Court has also said that “the interest of parents in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). Based on these precedential cases, and many others, “it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Id. at 66. Accordingly, the Court recognizes that the interest at issue in this case—as Zeyen has framed it—is a fundamental liberty interest protected by the Constitution.

However, the right to enter school property, the court reasoned, is not included in the right to control the upbringing.  Quoting the Ninth Circuit, the court wrote:

“[w]hile Troxel does mention that parents have the right to direct and control the education of their children ..., nothing in that decision suggests that it includes the right to go onto school property, even if doing so is necessary to participate in the child's education.” Mejia v. Holt Pub. Schs., No. 5:01-CV-116, 2002 WL 1492205, at *5–6 (W.D. Mich. Mar. 12, 2002); [(also citing four other lower cases reaching a similar conclusion)].

Zeyen argues these cases all “make the same analytical error”: “[t]hey myopically view the claimed right—recasting it as only about unfettered access to school property—and then minimize the true harm to the parent's liberty interests.” The Court disagrees. These cases do not make this error. Rather, they start with the fundamental right of parents in the care, custody, and control of their children—which the Supreme Court recognized in Troxel (and other cases)—and then they determine whether that right extends to access to school property and school events. Ultimately, these courts (with the exception of Johnson) have determined that the right does not extend that far. The Court is not swayed by Johnson, which sua sponte expanded constitutionally protected parental rights. The Court also hesitates to join Johnson considering the Second Circuit did not have the opportunity to review this particular ruling on appeal.

The court was more sympathetic to the First Amendment claims.  While the First Amendment does not entitle the parent to unfettered access to the school any more than the right to control the upbringing of the child, the First Amendment would seem to provide certain types of specific access.  The court noted that several other courts have recognized schools’ “authority ... and responsibility for assuring that parents and third parties conduct themselves appropriately while on school property” and that they do not engage in disruptive or “threatening conduct that disturbs the tranquility of schools.” But “[t]hese cases do not . . . state that individuals have no right to free expression on school property. The First Amendment's protections extend to a broad range of speech and expressive conduct. The rights Zeyen now asserts—including the right to vote, speak at public meetings, and peaceably assemble—fall generally into the category of activities protected by the First Amendment.”

[T]here may be instances in which the School District treats its property as a limited public forum. In those circumstances, the policy banning Zeyen from the property must be reasonable and viewpoint neutral. Zeyen has identified three specific circumstances in which he argues the District has treated its events as limited public forums and the policy banning him from those events was not reasonable and viewpoint neutral.

Zeyen first argues Vagner's letter denies him the right to vote because it prevents him from voting at his local polling place, which is located on School District property. . . . There is case law describing polling places located at schools as “limited” or “designated” public forums open “for the purpose of voting.” Thus, when used as a polling place, the School District's property is a limited public forum and the policy banning Zeyen during those time must be reasonable and viewpoint neutral. . . .

Zeyen next argues the letter violates his right to petition the government because he cannot attend school board meetings and parents' meetings at individual schools. Because he cannot attend these meetings, Zeyen argues the School District has muted his voice on the operation of local schools. School District property becomes a limited public forum, open for limited purposes, during these meetings. . . .

Finally, Zeyen argues the letter prevents him from attending other school events to which the School District invited the public, such as basketball and football games. . . . The Court finds . . . the School District opens up its property as a limited public forum during school sporting events.

The court remanded on all of these issues, indicating that the jury should determine whether the district’s policy toward Zeyen was viewpoint neutral.

The court's bright-line treatment of the issues should be easy enough for parents and non-lawyers to understand.  This is a good thing, particularly in an environment where this issue comes to the fore too often.  I might, however, quibble with the court for drawing too bright of a line on the fundamental right to control the upbringing of the child.  While I agree that there is no general right to access school property, whether the denial of access could, as a practical matter, amount to a deprivation of a parents' right to control the upbringing seems slightly more complicated. 

The father might understandable need to communicate with teachers and other staff to stay appraised of his child's academic development.  He may want to attend parent-teacher conferences like any other parent.  The fact that he cannot, or may face challenges in doing so, does not automatically amount to a deprivation of his right to control the upbringing of his child, but it does strike me as warranting analysis that the court did not provide.  Instead, the court sought to quickly put that issue to bed, just like prior courts.  My suspicion is that this court, like others, see this as necessary in a world where parents are increasingly combative, but what does this do to parents who just want to exercise their rights?

        --image by University of the Fraser Valley

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