A federal district judge has ruled for a West Virginina school district and its officials in a case in which a parent sought to exempt her daughter from mandatory vaccinations for medical and religious reasons.

The ruling earlier this month by U.S. District Judge Joseph R. Goodwin of Charleston, W.Va., is interesting in light of the debate over links between vaccines and autism, as well as public debate over school vaccinations for the H1N1 virus.

The suit was filed by Jennifer Workman, who feared exposing her 6-year-old daughter to mandatory vaccines required for school because the child's older sister developed developmental disorders that the mother attributes to vaccines. The mother submitted a doctor's note seeking to exempt the 6-year-old from vaccines, but the Mingo County School District turned down the request on the advice of the West Virginia state health department, according to court documents.

The mother sued the district and its officials, claiming, among other things, that the vaccination requirement violates her First Amendment right to free exercise of religion. The mother's "Christian Bapticostal religious beliefs require that she honor God by protecting her child from harm and illness, and that immunizing [the 6-year-old] in this instance would violate those sincerely held beliefs," her suit said.

In his Nov. 3 opinion in Workman v. Mingo County Schools, Judge Goodwin said West Virginia is one of only two states that does not offer religious exemptions for school vaccines. (He doesn't identify the other state.)

The judge granted summary judgment to the Mingo County school district on 11th Amendment immunity grounds. Unfortunately for the mother, the school district has been under state control since 2005, which means for immunity purposes it is considered an arm of the state, and under the 11th Amendment, the state may not be sued without its consent. (The judge said a regular county school system in West Virginia--one not under state control--would not have such immunity.)

Judge Goodwin did reach the merits of the mother's constitutional claims with respect to several school official defendants.

"Ms. Workman's freedom of religion claim fails," the judge said. "Her beliefs do not exempt her from complying with West Virginia's mandatory immunization program. It has long been recognized that local authorities may constitutionally mandate vaccinations."

He cited a 1905 U.S. Supreme Court case, Jacobson v. Massachusetts, and a 1944 decision, Prince v. Massachusetts, as well as a number of lower-court rulings that support the idea that, as the judge put it, "Although most states have chosen to provide a religious exemption from compulsory immunization, a state need not do so."

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The U.S. Supreme Court today declined to hear appeals stemming from the removal of a children's book about Cuba from school library shelves and a high school co-valedictorian's efforts to deliver a religious message at her graduation ceremony.

The book controversy involved ¡Vamos a Cuba!, or A Visit to Cuba. In 2006, a father in the Miami-Dade County, Fla., school district objected to the presence of the book in his daughter's elementary school because of inaccuracies and because the book's descriptions about daily life, such as that "people in Cuba eat, work, and go to school like you do," ignored the realities of the Communist regime under leader Fidel Castro.

The Miami-Dade school board's 6-3 decision to remove the book was struck down by a federal district court, which said the majority on the board was motivated to remove the book "because of their disagreement with the content-neutral views" expressed in the book.

But a panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, ruled 2-1 in February that the school board did not violate the First Amendment when it removed the Cuba book from the shelves of school libraries.

The 11th Circuit court said "overwrought rhetoric about book banning has no place here."

The appeal to the Supreme Court in American Civil Liberties Union of Florida v. Miami-Dade County School Board (No. 08-1564) raised questions about whether the appeals court failed to show proper deference to the district court's factual findings.

The justices declined without comment to hear the appeal.

In the religion case, student Brittany McComb sought to use her short valedictory message to discuss how her Christian faith helped her succeed at Foothill High School, in the Clark County, Nev., school district.

According to court documents, McComb says she followed school guidelines about reflecting on experience and saying heartfelt things. Her draft speech detailing her Christian outlook was returned by an assistant principal with large passages crossed out, with remarks such as "proselytizing" and "identifies a particular religion." At graduation, when the student began to deliver her speech anyway, officials turned off her microphone.

A federal district court allowed the student's First Amendment lawsuit to proceed, but a March ruling by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, upheld the school district's actions.

McComb's appeal to the Supreme Court, backed by the Rutherford Institute, argued that there was widespread confusion in the federal courts over how to treat religious messages by student speakers chosen under neutral criteria, such as valedictorians at graduation ceremonies.

The court declined without comment to hear the appeal in McComb v. Crehan (No. 08-1566). Meanwhile, the justices took no action today on an another appeal stemming from another religion-at-graduation case, in Corder v. Lewis-Palmer School District (No. 09-257) and it has other appeals pending involving religious speech in public schools.

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A federal appeals court today upheld a school district's policy of barring frivolous, repetitive, or harassing speech by speakers at its school board meetings.

The Jefferson County, Tenn., district was sued under the First Amendment by parents from two families who were barred from addressing the board a second time about a dispute involving their sons, who were kicked off the school football team in a dispute with their coach.

In the first meeting, the parents requested time during the board's period for public speakers to address what they described as a "football" issue. The lawyer representing the two families actually addressed the board, speaking politely but critically about several school officials and threatening to sue the district over the dispute, court documents say.

When one of the parents sought permission in advance to speak at the next school board meeting, again regarding "football," she was turned down. The district's schools director consulted with the school board chairman, who believed the speech would be repetitive in violation of the board's speaking policy. The schools director also thought the speech might be "harassing" in violation of the policy, since the parents' lawyer had threatened a lawsuit at the first board meeting.

The families sued in federal district court, where a jury ruled for the Jefferson County district. The district judge also required the parents to pay the school district's legal costs.

In its ruling in Lowery v. Jefferson County Board of Education, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled unanimously that the board's policy and actions did not violate the parents' free-speech rights.

The court held that the board's policy was content-neutral and served important governmental interests.

"Unstructured, chaotic school board meetings not only would be inefficient but also could deny other citizens the chance to make their voices heard," the court said.

The parents had had ample other channels to express their dissatisfaction with the decision to remove their sons from the football team, such as contacting several district officials, holding a press conference and, ultimately, filing a separate lawsuit over that issue, the court noted. (That suit was unsuccessful.)

The court expressed some concern that the schools director thought the second speech might be harassing because the lawyer had criticized district officials actions and threatened a lawsuit. "The board may not exclude speech merely because it criticizes school officials," the court said. But the jury was correct to conclude that the concern about the repetition of topic was ultimately what motivated the district's refusal to allow the second speech, the appeals court said.

The court reversed the district court's order requiring the parents to pay the school district's legal fees, in the sum of $87,000. The appellate panel said the lawsuit's claims were not frivolous.

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The U.S. Supreme Court today took up took the cases of offenders sentenced to life in prison without parole for crimes they committed as juveniles.

Nearly two hours of arguments covered such issues as what age to draw the line over such punishments, the purposes of incarceration, and whether offenders sentenced to life receive educational services despite their lack of hope of rejoining society.

"You suggested in your brief that educational and vocational training is not given to people who are in for life without parole because they will never be out on the street so they don't need to be transitioned back," Justice Ruth Bader Ginsburg said to the lawyer for one of the offenders in the first case today, Graham v. Florida (Case No. 08-7412). "Is that true?"

"Yes, that is generally true," said Bryan S. Gowdy, the lawyer representing Terrance Jamar Graham, who was 17 in 2006 when he was sentenced to life in prison without parole after his participation in a home invasion robbery (which had come as another strike on his record of other crimes). "It's generally true that those programs are not available to offenders who get life without parole. And that's what makes the sentence so particularly cruel, to give up on a kid at that point in his life."

The second case, Sullivan v. Florida (No. 08-7621) involves Joe Harris Sullivan, who was 13 in 1989 when he beat and raped a 72-year-old woman. The main question in both cases is whether sentencing youths to life in prison without parole for crimes committed as juveniles (and that don't involve homicide) constitutes cruel and unusual punishment under the Eighth Amendment.

"To say to any child of 13 that you are only fit to die in prison is cruel," Bryan Stevenson, Sullivan's lawyer, told the court. "It can't be reconciled with what we know about the nature of children, about the character of children. It cannot be reconciled with our standards of decency, and we believe that the Constitution obligates us to enforce those standards and reverse this judgment."

At issue is whether the Supreme Court is prepared to extend to the sentence of life without parole the logic of its 2005 decision in Roper v. Simmons, which struck down the death penalty for youthful offenders. In Roper, the court ruled 5 to 4, with Justice Anthony M. Kennedy writing for the majority that both a national consensus and research on the adolescent brain make it "misguided to equate the failings of a minor with those of an adult."

The court's conservatives and liberals generally appeared to be lined up the same way today, with Justice Kennedy a bit hard to read.

"What is the state's interest in keeping the ... defendant in custody for the rest of his life if he has been rehabilitated and is no longer a real danger?" Justice Kennedy asked of Florida Solicitor General Scott D. Makar, who represented the state in both cases.

"Well, I think certainly the state of Florida's interest as among other states is first of all to punish," Makar said. "Certainly I think deterrence plays a role. We recognize that deterrence may have less impact on some juveniles, but it doesn't have -- it doesn't have zero impact. It does have some impact on juveniles."

Justice Sonia Sotomayor, the successor to retired Justice David H. Souter, who was in the majority in Roper, pressed Makar on the degree to which age matters in sentencing youths in adult proceedings.

"Help me draw the line -- if 10 is in my judgment too early, why isn't 14, 16 or 18?" Justice Sotomayor said. "Meaning why should someone below the age of 14 be sentenced to life without parole?"

Justice Antonin Scalia, a dissenter in Roper, took the lead in attacking the lawyers for the youthful offenders.

"What about historical perspective?" Justice Scalia said. "At common law, which was in effect when the cruel and unusual punishments clause was adopted, 12 years was viewed as the year when a person reaches the age of reason. And -- and the death penalty could not be inflicted on anyone [below that age] and all felonies were the death penalty."

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., who were not on the court when Roper was decided, also appeared sympathetic to the state of Florida, although the chief justice appeared to be searching for a middle ground that would attract the vote of Justice Kennedy.

Roberts, noting that at least 38 states allow juvenile offenders to be sentenced to life without parole, said, "I would have thought that would be strong evidence that [the states] appreciate the gravity of the sentence in the particular circumstances of juveniles and therefore only impose it rarely."

Speaking to Stevenson, the chief justice later called for greater consideration of age in a case-by-case approach rather than a blanket rule striking down such sentences at a specific age.

"Your client -- his crime is horrendously violent," Chief Justice Roberts said of Sullivan, the 13-year-old convicted of raping the elderly woman. "At the same time, he is much younger than in the typical case. And it seems to me that requiring under the Eighth Amendment consideration of his age ... avoids all these line-drawing problems, which seem -- the arbitrariness of the line-drawing seems inconsistent with the notion of the Eighth Amendment."

Justice John Paul Stevens, who was with the majority in Roper, was seeking to make a point about research on recividism when he said, "There are an awful lot of amicus briefs in this case, and I haven't been able to read them all by any means."

One of the friend-of-the-court briefs on the side of the two youth offenders is from a group of educators, scholars, and child advocates that includes Geoffrey Canada, the founder of the Harlem Children's Zone; David Domenici and James Forman Jr., the founders of the Maya Angelou Public Charter School in the District of Columbia; and Father Jim Gartland, the president of Cristo Rey Jesuit High School in Chicago.

"Educators like amici agree that sentencing children to die in prison for non-homicide offenses senselessly ignores children's capacity for growth and rehabilitation so early in
their lives, wrongly treating those adolescents as irretrievably depraved," the brief says. "As the work of educators vividly demonstrates, however, juveniles are particularly amenable to the positive influences of education, community support, and rehabilitation because they are still developing."

The cases are expected to be decided by next June.

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A handful of lawsuits and new policies over school e-mail are making headlines:

The Wisconsin Supreme Court next week will take up a case about whether e-mails composed by teachers on school computers, both personal and work-related, constitute public records under state law. The Wisconsin Rapids school district agreed to release the e-mail of five teachers, with student information redacted, to a local resident who made an open-records request. That prompted the teachers to sue alleging a violation of their privacy rights, the Wisconsin Rapids Tribune reports here. The Wisconsin high court takes up the case on Nov. 10.

Meanwhile, the Lawrence, Mass., Eagle-Tribune reported last week that a principal in the Lawrence school district has sued a school board member over an e-mail sent to other board members. The e-mail discussed the settlement of a previous lawsuit by the assistant principal, who was a gym teacher at the time. The new suit alleges that the board member's e-mail includes some false information and violated her privacy rights, according to this story in the Eagle-Tribune.

Finally, Katie Ash has this story in Education Week about policies requiring teachers to log electronic interactions with students via e-mail or cell phones. The policies are motivated in part to combat sexual abuse of minors by school employees, but some educators argue that there are many legitimate reasons they keep in touch with students electronically, the story reports.

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A review of how states gather and manage databases containing individualized student information shows that many do so in ways that threaten the privacy of students, including using procedures that violate federal mandates on storing data about mental health, pregnancies, and juvenile crime.

The 87-page study by the Center on Law and Information Privacy at Fordham University Law School found that about one-third of states warehouse children's Social Security numbers, and nearly half track the mental health and jail sentences of students in their databases.

The center examined states' practices in light of greater data-collection requirements of the federal No Child Left Behind Act. But many states go beyond what the NCLB law requires, the report says, and some practices violate the Federal Educational Rights and Privacy Act, it adds.

The report, "Children's Educational Rights and Privacy: A Study of Elementary and Secondary School State Reporting Systems," recommends that student data maintained at the state level be made anonymous through the use of "dual-database architecture." Third-party data processors, such as private firms, should be made to sign agreements that address privacy obligations, the report says. And state education departments should each have a chief privacy officer to protect data, the report says.

The full report is linked above, and a press release is here, and a Washington Post story about the report is here.

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A federal appeals court deadlocked over a key legal challenge to the No Child Left Behind Act, resulting in the affirmance of a lower court's dismissal of the case.

The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, spent 10 months deliberating over the case involving a suit filed by nine school districts in Michigan, Texas, and Vermont, backed by the National Education Association, that challenges the federal K-12 education law as an unfunded mandate.

On Friday, the court issued 93 pages worth of opinions in Pontiac School District v. Secretary of the U.S. Department of Education, with eight judges accepting one of the NEA's arguments against the NCLB, and eight judges backing various arguments supporting dismissal of the case.

"Consequently, the judgment of the district court is affirmed," said a short order that accompanied the court's opinions.

Central to the case is a provision in the NCLB law that says, "Nothing in this act shall be construed to ... mandate a state or any subdivision thereof to spend any funds or incur any costs not paid for under this act."

Judge R. Guy Cole Jr. wrote an opinion, signed by seven other judges, that agreed at least in part with the school districts and the NEA that the so-called unfunded-mandates provision in the NCLB law meant that states and school districts could not be required to spend their own money to comply with the law.

"NCLB rests on the most laudable of goals: to 'ensure that all children have a fair,
equal, and significant opportunity to obtain a high-quality education,'" wrote Judge Cole, who was the author of a panel decision in the case that revived the NEA's suit last year. "Here, nobody challenges that aim. But a state official deciding to participate in NCLB reasonably could read [the unfunded-mandates provision] to mean that the state need not comply with requirements that are 'not paid for under the act' with federal funds."

Judge Cole's opinion, however, fell one vote short of controlling the outcome of the case.

Judge Jeffery S. Sutton, joined by five other judges, wrote an opinion that disagreed with Judge Cole's view on the merits of the NCLB arguments.

"Depending on whom you ask, the No Left Child Behind Act might be described in many ways: bold, ground-breaking, noble, naïve, oppressive, all of the above and more," Judge Sutton wrote. " But one thing it is not is ambiguous, at least when it comes to the central tradeoff presented to the states: accepting flexibility to spend significant federal funds in return for (largely) unforgiving responsibility to make progress in using them."

Judge David W. McKeague, joined by two other judges, said in an opinion that he would not rule on the merits because he believed the NEA's suit lacked necessary plaintiffs--the states of Michigan, Texas, and Vermont.

That meant a total of eight judges supported dismissal of the case, albeit on differing grounds, and that deadlock meant that a federal district judge in Detroit's dismissal of the case was upheld.

I haven't seen any reaction on the Web yet from the U.S. Department of Education or from the NEA. It is noteworthy that arguments by NEA General Counsel Robert H. Chanin made more headway with the 6th Circuit than seemed evident after oral arguments.

I reported in the blog here on the en banc oral arguments in the case last December (with a slightly revised story appearing in Education Week here.)

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A federal appeals court has revived the lawsuit of a teacher who alleged that her Wisconsin school district failed to accommodate her "seasonal affective disorder."

Teacher Renae Ekstrand's suit alleged that the artificially-lighted classroom she was provided exacerbated her disorder, which is a form of depression, to the point where she experienced anxiety, fatigue and other problems, leading her to take a leave of absence. Her suit alleged that the Somerset school district violated the Americans with Disabilities Act by failing to assign her to a classroom with natural light.

A federal district court granted summary judgment to the school district, concluding that it had tried to respond to the teacher's concerns. But in an Oct. 6 decision in Ekstrand v. School District of Somerset , a panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, restored her suit.

The panel held unanimously that the district could not have initially known that a classroom with natural light was the only effective accommodation for a teacher with seasonal affective disorder. But Eckstrand eventually presented information from one of her doctors that natural light was key to her improvement.

"Once aware of natural light's medical necessity to Ekstrand, and having been informed by Ekstrand only two weeks earlier that she was willing and able to return to work in a classroom with natural light, the school district was obligated to provide Ekstrand's specifically requested, medically necessary accommodation unless it would impose an undue hardship on the school district," the appeals court said.

The district faced little hardship because a teacher with a natural-light classroom was willing to switch with Ekstrand, and empty classroom was also available, the court said.

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A federal district judge has dismissed a lawsuit alleging that the teacher-licensure test in Massachusetts discriminates against minorities and those whose second language is English.

U.S. Senior District Judge Edward F. Harrington, of Boston, dismissed the suit filed by three teachers who had failed the Massachusetts Tests for Educator Licensure and thus were dismissed by the Boston school system in 2006. The teachers alleged in the suit against the state, the Boston district, and test-maker NCS Pearson Inc. that the tests had an illegal disparate impact on minority and ESL test-takers. On a literacy-skills portion of the MTEL, 39 percent of African-American test-takers passed, compared with a 75 percent pass rate of white test-takers.

In an Oct. 13 opinion in Alston v. Massachusetts, Judge Harrington granted the defendants motions to dismiss, largely on the grounds that the plaintiffs had failed to follow procedural steps with a state anti-discrimination agency and had waited too long after the 2006 dismissals to file the suits earlier this year.

In a brief bit of dicta, Judge Harrington scolded the plaintiffs for attacking the teacher test.

"A person who fails the bar examination does not practice law!" the judge said. "A competent teacher is one who has thorough knowledge of his subject and the faculty of communicating that knowledge effectively to his students. No student deserves to suffer an inferior education because he was exposed to a teacher less than qualified."

The plaintiffs should seek to "ameliorate their scholastic deficiencies rather than to seek to undermine the standards" of the teaching profession, the judge said.

The Boston Globe reports on the case here.

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Often, after big, complicated civil rights litigation in such areas as school desegregation and the reform of foster care, there is a second battle: over attorneys' fees for the prevailing party.

The U.S. Supreme Court today took up an important question arising out of such battles: whether courts may award enhanced fees, above and beyond reasonable attorneys' fees based on hourly pay rates, when lawyers seeking institutional reforms do an exceptionally good job of making their case and bringing about improvements.

A federal district judge in Georgia awarded lawyers who led a long legal battle to improve the state's foster-care system an extra $4.5 million in fees, on top of $6 million awarded under what is called the "lodestar" system: reasonable billable hours and authorized expenses. The judge said that lawyers from a New York City group called Children's Rights had done a "superb" job on the case and had "brought a higher degree of skill, commitment, dedication, and professionalism to this litigation than the court has seen displayed by the attorneys in any other case during its 27 years on the bench."

A federal appeals court upheld the enhanced award.

The justices agreed to take up the case, Perdue v. Kenny A. (Case No. 08-970), which drew some interesting friend-of-the-court briefs. The National School Boards Association filed such a brief on the side of the state of Georgia, which is seeking to overturn the enhanced award. The NSBA argues that the case is "of extreme importance" to schools because of the potential harmful effect of enhanced fee awards to school systems and their taxpayers.

"Like the present case, litigation against school districts frequently results from chronic
underfunding that leads to systemic deficiencies," the NSBA brief says. "In such cases, public schools will often seek to resolve the matter through mediation or negotiations that culminate in settlements or consent decrees that call for significant policy changes, structural overhauls, programmatic improvements, and increased funding to correct the deficiencies. But under ... enhanced fee award theory, courts could reward the plaintiffs' attorneys with large performance bonuses that school systems can ill afford to pay."

Joining briefs supporting the bonus fees are several groups that are often behind lawsuits against school districts, including the American Civil Liberties Union and the NAACP Legal Defense Fund on the left, and the Alliance Defense Fund and the American Center for Law and Justice on the right.

The conservative groups, in their brief, argue that attorney's fees undergird the system of private enforcement of the nation's civil rights laws.

"Attorney fees are not merely about compensating attorneys who undertake the
representation of those oppressed and damaged by government, often at significant risk to their regular practice," says the brief by Alliance Defense Fund, the ACLJ, and other groups. "Just as important, and possibly more so, they provide the incentive for governments, especially with the outcry of local taxpayers upon the media
announcement of an attorney fee judgment, to reform their unlawful conduct and refrain from civil rights violations in the future."

And alluding to a noteworthy case pressed by one of the conservative legal groups, the brief says, "A local school district can spend a million dollars fighting a child who wants to hand a candy cane with a religious poem attached to his friends during Christmas, and then hold media events expressing a need for money for education."

These school examples and arguments weren't discussed during oral arguments today, but there was still a lively discussion.

Justice Sonia Sotomayor noted that the high court has held "that it should be a rare and
exceptional circumstance" to award an enhanced fee.

"The difference that we are engaged in is whether the quality of performance can ever constitute that rare exception that would justify a district court saying, you performed greater than what the market would have valued you at before your performance," she said.

Pratik A. Shah, an assistant to the U.S. solicitor general, arguing on Georgia's side, said the law does not permit enhanced fee awards for outstanding attorney performance. One case in which an enhanced fee could be authorized would be "where an attorney takes on a particularly unpopular client or cause that causes some external harm, external to the case, to his practice or income."

Justice Samuel A. Alito Jr. later told the lawyer arguing for Children's First and the enhanced-fee award that he was troubled because "here the district judge in effect takes four-plus million dollars from the taxpayers of Georgia and awards it above the lodestar calculation to these attorneys and says ... this was the best performance I have seen in 28 years. But it seems totally standardless, and I see no way of policing it, and I see a great danger that trial judges are going to use this as a way of favoring their favorite nonprofit foundation or their favorite cause or their favorite attorneys, because they think they generally do good work."

Justice Antonin Scalia added: "I don't like judges -- it's certainly not in the tradition of the bench -- to comment upon the performance of lawyers. I can't tell you how often I would like to give a separate grade for the lawyer who won a case. You know, one grade for the case and the other for the lawyer. But we don't do that."

Paul D. Clement, a former U.S. solicitor general under President George W. Bush and the lawyer arguing for the enhanced award, later was challenged by Chief Justice John G. Roberts Jr. about whether the outcome of a civil-rights case is the result of a lawyer's strong performance or the judge's interpretation of the law.

"Maybe we have a different perspective," the chief justice told Clement. "You think the lawyers are responsible for a good result, and I think the judges are."

In a breezy retort that not every lawyer arguing before the justices could get away with, Clement alluded to Chief Justice Roberts's former career as a highly successful Supreme Court advocate.

"Maybe your perspective has changed, your honor," Clement said to the chief, drawing laughter in the courtroom.

A decision in the case is expected by next July.

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