A New Hampshire judge has struck down the state's year-old program of tax credits for businesses that contribute money to organizations offering tuition scholarships at private schools.

Presiding Justice John M. Lewis of Stratford County Superior Court held that the program violates the state constitution because it diverts state tax payments to religious schools.

"New Hampshire students, and their parents, certainly have the right to choose a religious education," the judge said in his June 17 ruling in Duncan v. New Hampshire. "However, the government is under no obligation to fund 'religious' education. Indeed, the government is expressly forbidden from doing so by the very language of the New Hampshire Constitution."

The program was adopted by the Republican-led New Hampshire legislature over the veto of Gov. John Lynch, a Democrat, as covered in Education Week's Charters & Choice blog here. Various forms of tax-credit programs for private school tuition have become popular among the states in recent years as an alternative to outright private school vouchers.

In 2011, in Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court said taxpayers who opposed a similar tax-credit program could not challenge it in federal court because any financial benefit to religion under the program was not the result of government spending choices.

Three groups--Americans United for Separation of Church and State, the American Civil Liberties Union, and the New Hampshire Civil Liberties Union--challenged the New Hampshire program. They argued it violates the "no aid" clause of the state constitution, which says that "no money raised by taxation shall ever be granted or applied for the use of schools or institutions of any religious sect or denomination."

Judge Lewis took note of the Supreme Court's Winn decision but noted that the New Hampshire suit was brought under the state constitution. He concluded that the tax-credit program uses "public funds" or "money raised by taxation" as defined in state law and ultimately violates the no-aid clause of the state constitution.

"The program has been shown to have money raised by taxation inevitably go toward educational expenses at nonpublic religious schools without restriction regarding how the money may be used," Judge Lewis said. "The benefit to religious schools will be inevitably and obviously more than incidental or de minimis."

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Call it the case of the hard-to-schedule meeting with a parent that may cost a school system some $28,000 in private school tuition.

A federal appeals court has ruled that a school district's failure to include the parent of a special education student in an individualized education plan meeting that changed the student's school placement was a denial of a free, appropriate public education under federal law.

The father of an 18-year-old Hawaii student with autism wanted to be included in the IEP meeting for his son. But after one rescheduling and some inflexibility on the part of the Hawaii Department of Education (the state's singular public school district), members of the student's IEP team went ahead with the meeting without the father. They also changed the student's placement from a private special education school to a workplace-readiness program at a public high school.

The school system said in court papers that it had tried to work with the parent to come up with an agreeable date and its participants had busy schedules and it faced a deadline before the student's existing IEP lapsed.

The father, identified in court papers as Doug C., was sick on the day in November 2010 of a much-rescheduled IEP meeting. He declined district officials' suggestions that he participate by phone or the Internet, saying he wanted to be there in person.

After the IEP team went ahead without him, and changed the son's school placement, the father rejected the new IEP and sought a due-process review. He also kept his son in the private school, the Horizons Academy of Maui, and sought tuition reimbursement.

Both a hearing officer and a federal district court ruled for the school system, saying that not including the father in the IEP meeting did not deny his son a free, appropriate education under the federal Individuals with Disabilities Education Act.

In its June 13 decision in George C. v. Hawaii Department of Education, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, unanimously reversed those lower rulings.

"Echoing the Supreme Court, we have held that parental participation safeguards are among the most important procedural safeguards in the IDEA and that procedural violations that interfere with parental participation in the IEP formulation process undermine the very essence of the IDEA," the 9th Circuit court said.

"The fact that it may have been frustrating to schedule meetings with or difficult to work with Doug C. (as the department repeatedly suggests) does not excuse the department's failure to include him in [the son's] IEP meeting when he expressed a willingness to participate," the court added. "We have consistently held that an agency cannot eschew its affirmative duties under the IDEA by blaming the parents."

The appeals court stopped short of granting tuition reimbursement to George C.'s over his decision to keep his son at Horizons Academy. (It's not clear whether only one year of tuition is at issue, or the exact amount, but according to the academy's website, base annual tuition is $28,000.) The appeals court left it up to the district court to decide whether Hawaii would have to reimburse the tuition under applicable precedents.

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The U.S. Supreme Court on Monday declined to hear an appeal from parents who contend the New York City school system violated federal special education law when it excluded them from the decision over where their son would attend school.

The parents say they participated in the process in 2008 to develop an individualized education plan for their son, who has autism. But when it came time to assign their son to a school, the New York City school district unilaterally chose a school site and then mailed the decision to the parents as a "final notice of recommendation."

The parents, identified in court papers as R.E. and M.E., believed the assigned school did not have sufficient one-to-one teaching support for their son, so they enrolled him in private school and sought tuition reimbursement from the school district.

A federal district court sided with the parents, but a panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, ruled last year that under the federal Individuals with Disabilities Education Act, the school district "may select the specific school without the advice of parents so long as it conforms to the program offered in the IEP."

In their appeal to the Supreme Court, the parents said the 2nd Circuit court's ruling conflicts with decades of Supreme Court special education decisions that the "core of the statute" requires parental input at all stages of the decision-making process.

"Numerous procedural safeguards in the act evince Congress' intent that decision-making be the result of a collaborative process between school districts and parents that is intended to increase the chances of developing an appropriate education plan while minimizing the risk of unnecessary conflict," the parents' appeal said.

In a response urging the justices not to hear the case, the New York City school system said the 2nd Circuit was following its own precedents holding that while parents should participate in decisions on the "educational placement" of their child, the term meant "the general type of educational program in which a child is placed and not the specific school site."

The justices declined without comment to hear the appeal in R.E. v. New York City Department of Education (Case No. 12-1210).

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A Pennsylvania school district cannot be held liable for the bullying of a high school student by one of her peers, despite the fact that school officials re-admitted the perpetrator after she had been found delinquent and then continued to bully the victim, a federal appeals court has ruled.

The full U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, expressed sympathy for the victim and her family but said that under well-established precedents they could not prevail under two distinct theories in holding the district and one of its administrators legally responsible for the bullying.

The court held 9-5 that despite compulsory education laws the school did not have a "special relationship" with its students that would give rise to a duty to protect them from harm from other students. And it ruled 10-4 that legal injuries to the victims were not the result of actions taken by administrators under a "state-created danger" theory of liability.

"Parents in [the victim's] position should be able to send their children off to school with some level of comfort that those children will be safe from bullies," the 3rd Circuit majority said in its lengthy June 5 decision in Morrow v. Balaski. "Nonetheless, the Constitution does not provide judicial remedies for every social ill."

The case involves Brittany Morrow, who in early 2008 at Blackhawk High School in Beaver County, Pa., began facing bullying from a schoolmate that included "racially motivated" threats and physical assaults, court papers say. In one incident, the perpetrator attacked Brittany in the lunchroom and because Brittany defended herself, she was suspended along with her attacker.

For that and other incidents, the perpetrator was charged in juvenile court with assault, making terroristic threats, and harassment. She was adjudicated delinquent and ordered to have no contact with Brittany. The perpetrator was nevertheless allowed to return to Blackhawk High. In the fall of 2008, she allegedly boarded Brittany's school bus and threatened her, and later elbowed her in the face at a high school football game.

The Morrows say in their suit that when they brought those incidents to the attention of school administrators, the officials suggested they might want to consider another school for their daughters. (Brittany's sister, Emily, had also faced some bullying at the school, according to the suit.) The parents removed their daughters from Blackhawk High in October 2008. They later sued the Blackhawk school district and an assistant principal for violations of their 14th Amendment substantive-due-process rights, seeking damages that weren't specified in the 3rd Circuit's opinion.

A federal district court dismissed the suit, ruling that a 1992 3rd Circuit precedent that is well known in education law circles (D.R. v. Middle Bucks Area Vocational Technical School) established that there is no special relationship between public schools and their students. The district court also rejected the state-created danger theory.

Writing for the 3rd Circuit majority, Chief Circuit Judge Theodore A. McKee noted that the 1992 decision had been based on the U.S. Supreme Court's 1989 ruling in DeShaney v. Winnebago County Department of Social Services, which held that "as a general matter, ... a state's failure to protect an individual against private violence simply does not constitute a violation of the due process clause."

Since then, McKee said, the Supreme Court has clarified that the DeShaney principle applies in the public school context, in dicta, or language not crucial to the decision at hand, in its 1995 decision in Vernonia School District v. Acton. That case upheld random drug testing of student athletes.

"The Supreme Court's dictum in Vernonia as well as the consensus from our sister circuit courts of appeals both reinforce our conclusion that public schools, as a general matter, do not have a constitutional duty to protect students from private actors," McKee said. "We know of nothing that has occurred in the 20 years since we decided Middle Bucks that would undermine this conclusion."

As for the state-created danger theory, McKee said the Morrows' suit seeks "to redefine clearly passive inaction as affirmative acts" by school administrators and thus must fail.

In the main dissent, Judge Julio M. Fuentes said the majority's result was "wrong as a matter of law."

Schools exercise more control over student's lives today than when Middle Bucks was decided, he said, such as by monitoring students' use of social media both inside and outside of school, and by being able to lock students in classrooms for safety reasons in the age of school shootings.

"When a state ... steps into the shoes of [the] parent, and restricts the ability of the child to defend herself from a specific threat, the state ought to be seen as incurring a narrow, concomitant responsibility to act as one would expect the child's parents to act: to protect the child from that danger," Fuentes said. "When a school creates an atmosphere in which serious violence is tolerated and brings no consequence, it acts in a manner that renders all students more vulnerable."

(Hat Tip to How Appealing.)

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U.S. Supreme Court Justice Antonin Scalia warned in a dissent on Monday that the upholding of police taking the DNA of criminal suspects may one day lead to the universal collection of such samples in non-criminal contexts, including from children entering school.

The court ruled 5 to 4 in Maryland v. King (Case No. 12-207) to uphold a state law authorizing DNA swabs of suspects arrested for serious crimes such as murder, rape, kidnapping, and arson.

Justice Anthony M. Kennedy, writing for the majority, said that DNA collection is an important advance in law enforcement techniques and that under the proper circumstances, is a legitimate police booking procedure, like fingerprinting and photographing of suspects, that is reasonable under the Fourth Amendment. The court upheld the conviction of a Maryland man, Alonzo Jay King Jr., whose DNA sample taken when he was arrested for one crime led to his conviction for an unsolved rape.

Justice Scalia, joined by three of his more liberal colleagues—Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan—issued a blistering dissent that compared such warrantless DNA swabs of arrestees to the sweeping searches carried out by British authorities on the American colonists.

"I would not want to have been the royal officer charged with swabbing the cheek of Patrick Henry," Scalia said in remarks from the bench.

The method approved by the majority will "to be sure, have the beneficial effect of solving more crimes," Scalia said in his written dissent. "Then again, so would the taking of DNA samples of anyone who flies on an airplane ... , applies for a driver's license, or attends a public school."

Scalia put it slightly differently in his dissenting statement from the bench on Monday. The majority's promise to limit DNA sampling to those arrested for serious offenses is a line that "will not last," he said. "Make no mistake about it: because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason. This will solve some extra crimes, to be sure."

But, Scalia continued from the bench, "so would taking your children's DNA when they start public school."

Scalia's comment reflects a concern expressed at oral arguments in the case in February, when Justice Sotomayor wondered whether approval of Maryland's DNA testing would lead to widespread sampling of students.

As I noted then, the American Civil Liberties Union filed a friend-of-the-court brief on King's side arguing that embracing DNA sampling as a better way of identifying criminal suspects—a rationale embraced by the majority in Monday's opinion—would inevitably lead to more uses of DNA identification beyond law enforcement, including for children enrolling in school.

Justice Kennedy did not respond directly in his opinion to Scalia's barbs. His opinion, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Stephen G. Breyer, and Samuel A. Alito Jr., did cite for support some of the Supreme Court's school-related Fourth Amendment decisions. For example, he cited Vernonia School District v. Acton, a 1995 decision (written by Scalia) in which the court upheld suspicionless drug testing of high school athletes and other students participating in competitive extracurricular activities.

"The reasonableness of any search must be considered in the context of the person's legitimate expectations of privacy," Justice Kennedy said. "For example, when weighing the invasiveness of urinalysis of high school athletes, the court noted that 'legitimate privacy expectations are even less with regard to student athletes. ... Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford.'"

Likewise, "the expectations of privacy of an individual taken into police custody necessarily are of a diminished scope," Kennedy said.

Scalia said in his dissent today that "we have approved suspicionless searches in public schools—but only because there the government acts in furtherance of its responsibilities as guardian and tutor of children entrusted to its care."

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A federal appeals court has ruled that two Texas high school softball coaches are immune from a student's privacy lawsuit because there was no clearly established law barring school officials from discussing a student's private matters, including her sexual orientation, with the student's parent.

The 2-1 decision by a panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, comes in the case of a mother who sued the Kilgore Independent School District and various officials, alleging that the two softball coaches confronted her 16-year-old daughter about whether she was a lesbian and then "outed" her during a meeting with the parent.

There appears to be little agreement over the facts of the case. The 5th Circuit court majority said the claims made by the mother "have been a constantly moving target," with inconsistencies between the allegations in her suit and later deposition testimony and other evidence.

Generally, though, there appears to be agreement that the Kilgore High School student identified as S.W. had told close friends that she was a lesbian, court papers say. In 2009, she was having some form of close relationship with an 18-year-old woman, and the softball coaches were concerned for S.W. because they believed the 18-year-old was a bad influence on her. One of the softball coaches, Cassandra Newell, acknowledged in a deposition that she is a lesbian and had dated the 18-year-old woman.

The lawsuit filed by S.W.'s mother, Barbara Wyatt, alleges that the actions of the softball coaches violated her daughter's privacy rights under the Fourth and 14th Amendments to the U.S. Constitution and under provisions of the Texas Constitution. The Fourth Amendment claim includes an allegation that S.W. was the subject of an illegal "seizure" when the coaches locked her in a room to confront her.

A federal magistrate judge held that a student's right to privacy about information over her sexual orientation was clearly established and thus the coaches were not entitled to qualified immunity. The judge also held that there were too many unresolved questions of fact to grant summary judgment to all the defendants.

The coaches, Newell and Rhonda Fletcher, appealed the denial of immunity to the 5th Circuit, and that was the sole question before the appeals court panel. In its May 31 decision in Wyatt v. Fletcher, the 5th Circuit court panel reversed the magistrate judge and held that the coaches were entitled to qualified immunity.

There is no controlling law "showing a clearly established 14th Amendment privacy right that prohibits school officials from communicating to parents information regarding minor students' interests, even when private matters of sex are involved," said the majority opinion by Judge E. Grady Jolly.

Writing in dissent, Judge James E. Graves Jr. said the U.S. Supreme Court and multiple lower courts have recognized a right to privacy with respect to personal sexual matters, and the 5th Circuit majority was refusing to extend that right to high school students.

Graves said S.W.'s privacy rights should have been balanced against the asserted interests of the softball coaches—protecting S.W. from a bad influence and team dissension caused by rumors of the gay relationship.

Graves said the magistrate judge "found that there was sufficient evidence from which a reasonable person could conclude that the coaches were not motivated by the need to protect S.W. but rather were retaliating against S.W. for allegedly spreading a rumor about Newell."

"The state has no interest in retaliating against students," the dissenting judge said.

Graves also would have denied immunity to the coaches over the Fourth Amendment unreasonable seizure claim based on their locking S.W. in a locker room to confront her.

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The U.S. Supreme Court is entering June with the entire education community anxiously awaiting a decision in Fisher v. University of Texas at Austin (No. 11-345), a case that may determine the fate of the use of race in college admissions.

The case, which involves the flagship university's limited consideration of race to go along with the Top Ten Percent plan for its undergraduate admissions, was argued Oct. 10, during the second week of the court's term. It is the only case yet to be decided from the first two months of arguments.

The lengthy gestation period has ramped up speculation among high court observers about the likely outcomes of the case. (Admittedly, much of this chatter has taken place among reporters with too much time on their hands in the Supreme Court press room.)

Here are several possible scenarios:

A Kennedy Decision is Forthcoming

Justice Anthony M. Kennedy is widely viewed as the key justice in the Fisher case. The court's most conservative members—Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr.— are viewed as hostile to any consideration of race in education. Kennedy's views have been more nuanced, as reflected in his controlling concurrence in Parents Involved in Community Schools v. Seattle School District, the 2007 case in which he said school districts could sometimes broadly take race into account when drawing school attendance boundaries.

Every other justice besides Kennedy has written an opinion from a case argued during the October session. That leaves many observers thinking Kennedy is drafting the opinion in Fisher. The justices try to make sure that assignments to draft majority opinions are divvied up somewhat evenly for each argument session. So at this time of year, with about four weeks left in the court's term, observers use a process of elimination to identify likely authors of outstanding opinions. This tactic does have its pitfalls, since there are some argument sessions with more than nine cases to be divvied, and justices originally assigned an opinion can lose their majority. But the theory that Kennedy was assigned the Fisher opinion seems plausible.

If Kennedy is writing the opinion, the long delay could simply mean there has been much back and forth among the justices over majority, concurring, and dissenting opinions. But there are other possible outcomes.

A Tie Vote

The Fisher case was heard by only eight members of the court, with Justice Elena Kagan recused. (The presumption is that she had some involvement with the federal government's position in the case while she was U.S. Solicitor General in 2009 and early 2010.)

That means the justices could have tied 4-4. But if that had been the case after oral arguments in October, the normal practice would have been to announce that outcome within a matter of days. And if that had happened, the lower court's opinion would have been upheld "by an equally divided court," but with no opinion and no precedential value. That would have been a victory for the university, since the U.S. Court of Appeals for the 5th Circuit, in New Orleans, upheld its race-conscious admissions system.

So, is a tie still a possibility eight months down the road? In theory, the justices could have divided 5-3 (or some other lineup) at their conference vote after arguments, but evolved into a 4-4 tie later in the process. It's not clear whether the court's own internal rules require an affirmance without an opinion whenever a tie is reached, or whether a late-in-the-game tie allows for some other option, such as ordering reargument.

A Dismissal or Ruling on Jurisdictional Grounds

This possibility centers on arguments presented to the Supreme Court long before it even accepted review of the Texas case—that there was no live controversy because Amy Fisher, the white student who challenged the UT admissions program, has graduated from another university and has no genuine stake in the controversy.

The justices brushed aside those arguments in accepting Fisher's case for appeal, though at oral arguments some of the court's more liberal members, including Justices Ruth Bader Ginsburg and Sonia Sotomayor, did raise the jurisdictional questions.

Fisher's lawyer, Bert W. Rein of Washington, told the justices at oral arguments that the fact Fisher is seeking a refund of her $100 admissions application fee for UT was enough to keep the case a live controversy. Justice Scalia expressed sympathy for that view during oral arguments.

Still, the Supreme Court is traditionally deeply concerned about deciding only cases that are properly before it, and many major appeals have fizzled on standing or other jurisdictional grounds long after oral arguments.

Reargument Next Term?

A more recent theory to emerge among some court watchers relates to the fact that the justices have granted review of another case involving affirmative action in higher education.

In Schuette v. Coalition to Defend Affirmative Action (No. 12-682), to be argued next term, the court agreed to review a federal appeals court ruling that struck down a 2006 Michigan ballot initiative that bars the use of racial preferences at state colleges and universities.

Many legal experts believe that although Schuette relates to affirmative action policies in higher education, the legal question about whether a minority group is being disadvantaged at the ballot box is distinct enough from the basic question in Fisher to explain why the justices didn't simply hold the Michigan appeal for the outcome of the Texas case.

Still, the new theory is that the court would order new arguments in Fisher and consider it next term along with the Michigan case. One fly in the ointment for this theory is that the same arithmetic would be at play for such a reargument, since Justice Kagan would still be recused. And she is also recused from the Michigan case, so there will be only eight justices deciding that case, too.

* * *

These are not the only outcomes of course. For one thing, I didn't even mention the possibility that Justices Ginsburg, Sotomayor, or Stephen G. Breyer might be writing a majority opinion upholding the University of Texas admissions program. But for that possibility, they would have to have Justice Kennedy and one of the court's conservatives on their side.

The court next issues opinion on Monday, June 3.

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Alton T. Lemon, the lead plaintiff in a landmark U.S. Supreme Court case setting a key test for evaluating the constitutionality of government aid to religious schools, has died, according to published reports.

Lemon was an activist who helped challenge a 1968 Pennsylvania law that authorized state reimbursement of nonpublic schools, including religious schools, for "secular" services such as teachers' salaries, textbooks, and other instructional materials.

He was 84 and suffered from Alzheimer's disease, according to his obituary in The New York Times. He died May 4 in Jenkintown, Pa.

In its 1971 decision in Lemon v. Kurtzman, the high court struck down the Pennsylvania program, along with a similar Rhode Island program in a consolidated case, as resulting in an excessive entanglement between government and religion in violation of the First Amendment's prohibition against government establishment of religion.

The entanglement stemmed from the state oversight necessary to ensure that only secular expenses of a religious school be reimbursed, such as a continuing need by government auditors to inspect the church school's finances, Chief Justice Warren E. Burger said in the majority opinion of the 7-1 decision.

Lemon, a native of McDonough, Ga., who lived in the Philadelphia area, was a government worker who was active in the the NAACP and American Civil Liberties Union, according to the Times obituary. He was asked by civil rights groups to be a plaintiff in the challenge to Pennsylvania program.

As recounted in Burger's opinion, Lemon asserted standing as a taxpayer and as a parent of a public school student to challenge the program. The program was initially funded by a tax on horse and harness racing, and Lemon alleged that he had purchased at least one ticket at a Pennsylvania race track and thus supported the specific program of aid to religious schools.

The Lemon decision's more lasting impact stemmed from its establishment of a three-part test for evaluating government aid to religion, known ever since as the Lemon test. Under the test, courts weighing a program of government aid to religion must consider whether the program has a secular purpose, whether its primary purpose is to advance or inhibit religion, and whether it results in an excessive entanglement between government and religion.

The test has been much criticized by conservative law professors and many judges, including some members of the Supreme Court. In a 1993 concurrence in a church-state case, Justice Antonin Scalia used vivid language to accompany his view that the Lemon test had effectively been overruled by other church-state tests without the high court formally declaring so.

"Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again," Scalia wrote in Lamb's Chapel v. Center Moriches Union Free School District.

Justice Byron R. White, in his majority opinion in the 1993 case dealing with church access to school facilities for an evening film series on religious topics, responded to Scalia by saying that Lemon, "however frightening it might be to some, has not been overruled."

Indeed, the Lemon test has survived to this day. In 2011, in a published dissent from the court's refusal to take up a church-state case involving state involvement in highway religious memorials, Justice Clarence Thomas castigated the Lemon test and said the court's establishment clause jurisprudence was "in shambles."

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The U.S. Supreme Court agreed on Monday to take up the constitutionality of prayers before municipal meetings, a question with potential implications for school boards across the country.

Meanwhile, the justices once again did not act on a pending appeal dealing with the legality of holding public high school graduation ceremonies at a church with many visible Christian symbols. The court has privately weighed the appeal in Elmbrook School District v. Doe (12-755) six times without taking any action on the closely watched case.

Also on Monday, the court refused to hear the appeal of the Kansas City, Mo., school district in a dispute over the diversion of state money to independent charter schools that the district believes belongs to it under a longstanding desegregation consent decree.

In the municipal prayer case, Greece, N.Y. v. Galloway (No. 12-696), the justices will review a federal appeals court ruling that the New York state community violated the First Amendment's prohibition against government establishment of religion by allowing private citizens to open town board meetings with a prayer.

The town has allowed volunteers to lead prayers since 1999. It says in court papers that it does not steer the citizens' choices in any direction and has had many faiths represented.

But those who challenged the practice say the town has relied primarily on Christian ministers, who often have elaborated on tenets of Christianity and celebrated the birth and resurrection of Jesus Christ.

A federal district court upheld the town's practice under the Supreme Court's 1983 decision in Marsh v. Chambers, which upheld state legislative prayers.

A panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, reversed, ruling last year that the establishment clause is violated "where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town ... conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them."

The town appealed to the Supreme Court, arguing that there was a split on federal courts of appeals as to whether municipal prayers should be analyzed under the "historical" test of Marsh or the government endorsement of religion test from another Supreme Court decision, County of Allegheny v. American Civil Liberties Union, in 1989.

Although school board meetings are akin to town or city council meetings in many respects, some courts that have weighed school board prayer policies have taken account of the unique factor that such boards are closely associated with education and that schoolchildren are often present for the proceedings.

In 2011, the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, struck down the board-meeting prayers of a Delaware school district, holding that meetings are more like other school events than like legislative sessions.

In 1999, the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, reached a similar conclusion in striking down the policy of the Cleveland board of education on prayer at school board meetings.

The Greece, N.Y., case will be argued during the court's next term.

Consent Decree Battle

In the Kansas City, Mo., case turned down by the Supreme Court on Monday, the school system was battling a state panel, the Missouri Board of Fund Commissioners, over whether some $6 million-plus in interest would have to be diverted to charter schools in the city.

The school district argued that the money belonged in its coffers for regular public schools under the terms of its desegregation decree, but a state appeals court sided with the state panel.

The justices declined to hear the school board's appeal in School District of Kansas City, Mo. v. Missouri Board of Fund Commissioners (No. 12-1123).

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A search by school officials of a student's vehicle while it was parked just off campus was unreasonable under the Fourth Amendment, Nebraska's highest court has ruled.

The search had turned up drug paraphernalia, leading to a 19-day suspension for a Millard West High School student identified in court papers as J.P.

The Nebraska Supreme Court ruled 5-1 that school officials exceeded their authority under state law when they concluded that a student driving to and from school without parking on school grounds gave them a sufficient nexus to school activities to subject the student to discipline based on that activity.

"We conclude that the school district did not have implied authority to search a student's vehicle parked off campus," the court majority said in J.P. v. Millard Public Schools.

The incident stems from a day in August 2010 when J.P. drove a truck to the high school and parked on an adjacent street. After one class, J.P. sought to exit the building to go to his truck, but a hall monitor refused him permission, court papers say. A short time later, J.P. snuck out to the vehicle anyway and retrieved his wallet and a sweatshirt.

A school security officer witnessed J.P.'s visit to his truck, and after some communication with others about whether the student had permission to leave the building, J.P. found himself in the office of Assistant Principal Harry Grimminger. The administrator required J.P. to empty his pockets, and that search turned up no contraband.

Grimminger said he wanted to search J.P.'s truck. The student refused consent, saying his dad would not want the truck searched. Nevertheless, the assistant principal and a school resource officer performed the search, and they turned up two drug pipes.

J.P. and his father challenged the student's suspension on Fourth Amendment grounds. A hearing officer found that school jurisdiction extended to the adjacent street where J.P. had parked the truck, and the suspension was upheld.

The family sued, and a Nebraska trial court ruled that the search was unreasonable under the Fourth Amendment because school officials in this case had to meet the same standards for a warrantless search as the police, J.P. did not consent to the search of the truck, and the search of his pockets had not given the authorities probable cause to move on to the truck.

In its May 17 decision, the state high court affirmed the lower court. The court noted that the U.S. Supreme Court's 1985 decision in New Jersey v. T.L.O.—which said school officials need only meet a standard of reasonable suspicion to search students at school—had been applied many times by lower courts across the country to searches of student vehicles. But all of those cases involved vehicles parked on school property, the Nebraska high court said.

The court said it could not find a case that recognized "a right of school officials to conduct off-campus searches of a student's person or property which are unrelated to school- sponsored activities."

"On school grounds, school officials have authority to regulate and control student conduct," Justice John F. Wright wrote for the majority. "But school officials are not given express or implied authority to search on a public street, at a student's home, or on other premises off school grounds, including an off-school-grounds vehicle that is not associated with a school-sponsored event or activity."

It upheld the lower court's order that J.P.'s discipline be removed from his permanent record.

Writing in dissent, Chief Justice Michael G. Heavican said he believed school officials had several grounds to conduct the search of J.P.'s truck under the "reasonable suspicion" standard.

"Here, while on school property during regular school hours, J.P. lied to school officials on multiple occasions and J.P. exited the school without authorization and reentered the school on two separate occasions," Heavican said. "The majority's opinion allows students to violate important school rules without consequence. It permits students to hide from authority simply by parking their vehicles across the street."

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