The School Law Blog

It's been a little quiet on the school law front the last couple of days, but here are a few tidbits:

IDEA Expert Witnesses: Over at her On Special Education blog, my Education Week colleague Christina A. Samuels has this report on the IDEA Fairness Restoration Act, a bill introduced in Congress that is designed to reverse the U.S. Supreme Court's ruling in Arlington Central School District v. Murphy. The bill would amend the Individuals with Disabilities Education Act to allow the prevailing party in an IDEA suit to recover the costs of expert witnesses.

Indiana School Finance: Over at the Edjurist Accord, Justin Bathon reports on a ruling by an Indiana state appellate court that will permit a challenge to the state's funding system to go forward. The court's ruling is here.

Nebraska School Consolidation: What happens when a state passes a law requiring the consolidation of certain school districts, and a ballot initiative later passes that repeals the law, but not before a state committee carries out the first phase of the consolidations? As you might guess, litigation ensues. A decision last week by the U.S. Court of Appeals for the 8th Circuit, in St. Louis, concludes that voters who challenged that first round of consolidations on various grounds don't have a case.

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Sen. John McCain of Arizona, the presumptive Republican presidential nominee, gave a speech today at Wake Forest University designed to outline his judicial views in which he cited a famous legal challenge to the recitation of the Pledge of Allegiance in schools.

The campaign put out this press release, as well as the text of his remarks. He says that if given the opportunity, he will appoint U.S. Supreme Court justices in the mold of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

McCain cited cases in which he thinks courts have run amok by imposing the judges' personal philosophies, or have failed to properly apply the U.S. Constitution. The only school case in that litany involved the challenge a few years ago to the words "under God" in the Pledge of Allegiance pressed by California atheist Michael Newdow. (Although McCain didn't cite him by name:)

Then there was the case of the man in California who filed a suit against the entire United States Congress, which I guess made me a defendant too. This man insisted that the words "Under God" in the Pledge of Allegiance violated his rights under the establishment clause of the First Amendment. The Ninth Circuit court agreed, as it usually does when litigious people seek to rid our country of any trace of religious devotion. With an air of finality, the court declared that any further references to the Almighty in our Pledge were -- and I quote -- "impermissible." And it was so ordered -- generations of pious, unoffending custom supposedly overturned by one decree out of a courtroom in San Francisco. And now it turns out the same litigant is back for more in the Ninth Circuit, this time demanding that the words "In God We Trust" be forever removed from our currency. I have a feeling this fellow will get wind of my remarks today -- and we're all in for trouble when he hears that we met in a chapel.

At least according to the prepared text, McCain didn't mention that the Supreme Court threw out the ruling by the U.S. Court of Appeals for the 9th Circuit against the inclusion of "under God" in the Pledge. The high court, in Elk Grove Unified School District v. Newdow, held that Newdow lacked standing to bring the challenge on behalf of his daughter. Education Week reported on that decision here.

Newdow is pressing a new suit against "under God" in the Pledge, which Edweek reported on here.

(This is being cross-posted at Education Week's Campaign K-12 blog.)

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A federal appeals court today agreed to re-examine a ruling by a panel of the court that revived a lawsuit challenging the No Child Left Behind Act for imposing unfunded mandates on states and school districts.

The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, announced that the entire 14-member court would rehear the case of Pontiac School District v. Spellings. The court's brief order is here.

The rehearing was sought by Bush administration lawyers on behalf of Secretary of Education Margaret Spellings after a three-judge panel of the 6th Circuit ruled on Jan. 7 that the states were not on clear notice of their financial obligations when they agreed to accept federal money under the NCLB law. (See Education Week, Jan. 16 and Feb. 13, 2008.)

The administration’s request for rehearing had said that the ruling had “immediate and irreparable” ramifications. Last week’s action by the full 6th Circuit has the effect of setting aside the panel’s opinion. No date was set for the rehearing, but one source indicated that oral arguments may not take place until September.

The request for rehearing had been opposed by the National Education Association, which organized the legal challenge of the NCLB law on behalf of some of its state affiliates and nine school districts in Michigan, Texas, and Vermont.

The 6th Circuit court’s action came the same week that a federal district judge dismissed the state of Connecticut’s lawsuit against Secretary Spellings over NCLB funding issues. See my blog post on that decision.

Education Week reported on the 6th Circuit panel's decision here, and on the Bush administration's request for rehearing here.

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A federal appeals court has rejected a constitutional challenge to a federal law that restricts, and in some cases bars, students with drug convictions from participation in federal college aid programs.

A three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled in Students for Sensible Drug Policy Foundation v. Spellings that the controversial sanctions do not violate the double-jeopardy clause of the 5th Amendment.

The student group argued that the primary purpose of the law is deterrence of criminal action, so the secondary sanction on those convicted of drug crimes is form of double jeopardy.

But the court noted that, under the law, a student may restore his or her eligibility for federal student aid by completing a drug-rehabilitation program.

"And the section was enacted as part of the Higher Education Amendments of 1998, which were primarily designed to increase access to college and make it more affordable," the court said.

Education Week reported in this 2001 story that the Bush administration was taking a strict approach to the law, requiring all applicants for federal student aid to answer a question on aid forms about whether they have ever been convicted of the covered drug offenses.

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A federal district judge has ruled against the state of Connecticut in its lawsuit against U.S. Secretary of Education Margaret Spellings over the administration of the No Child Left Behind Act.

U.S. District Judge Mark R. Kravitz of New Haven, Conn., issued a decision Monday rejecting the last of the state's claims. The judge had dismissed other claims in the suit in 2006.

Judge Kravitz turned away Connecticut's efforts to have the federal court overturn Secretary Spellings' administrative decision turning down the state's request seeking greater flexibility in testing students in special education and English-language learners under the law. The judge said the secretary's actions were not arbitrary or capricious.

On a key issue that has been raised in another legal challenge to the NCLB law, Judge Kravitz declined to rule on the state's arguments that the secretary was enforcing the federal education law in a way that violates a provision of the law that bars the federal government from imposing "unfunded mandates" on the states.

"The court has no doubt that the very important issue of the proper interpretation of the unfunded-mandates provision is not before this court," Judge Kravitz said in his opinion, because Connecticut had not properly raised the issue during the secretarys' review of its NCLB plan.

"Though Connecticut provided estimates of what it would cost to modify and implement assessment policies and accommodations for LEP students and to develop alternate assessments for students with disabilities, nowhere did it state that the federal funding was insufficient to cover those costs," the judge said. "Instead, the State sought to justify its requests on the basis of reasons other than cost."

The judge said the state is free to raise the unfunded-mandates issue in the next round of administrative decisions before the secretary. That would put off any legal decision on the issue for many months, if not years.

My Education Week colleague David Hoff writes about the ruling here in his NCLB: Act II blog, including a statement from the U.S. Department of Education that the decision is a "resounding victory for children and families."

The Associated Press reports on the ruling here. This updated AP story on the site of the Hartford Courant quotes a statement by Connecticut Attorney General Richard Blumenthal that he intends to appeal the decision.

The other big NCLB ruling I alluded to above was the Jan. 7. decision by the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, that the states were not on clear notice of their financial obligations when they agreed to accept federal funds under the law. Secretary Spellings' request seeking a rehearing before the full 6th Circuit court is pending.

Education Week reported on the 6th Circuit decision here, and in this story that discussed the possible impact on the Connecticut case.

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The Supreme Court of Canada has ruled 6-3 that random searches by drug-sniffing dogs in schools violate students' right to privacy.

In Her Majesty the Queen v. A.M. , the nation's top court upheld two lower courts that had thrown out drug-possession charges of a student whose backpack had been searched after a police dog alerted to it and the police found marijuana and mushrooms. The principal of St. Patrick School in Sarnia, Ontario, had invited police to conduct the warrantless search. Students were kept in their classrooms while the dog sniffed their backpacks.

The majority on the Supreme Court held that the sniffer-dog search of the backpack violated Section 8 of the Canadian Charter of Rights and Freedoms, which says, "Everyone has the right to be secure against unreasonable search or seizure."

"Teenagers may have little expectation of privacy from the searching eyes and fingers of their parents, but they expect the contents of their backpacks not to be open to the random and speculative scrutiny of the police," said a plurality opinion by Justice William Ian Binnie.

The Globe and Mail newspaper reports here, CBC News reports here, and Bloomberg News reports here. (Thanks to How Appealing for the tip.)

A couple of years ago, my Education Week colleague Andrew Trotter reported that more U.S. school districts were using drug-detection dogs. A visit to a school in Oklahoma City showed that "campus searches typically cover parking lots, student lockers, and school common areas, such as the cafeteria. The dogs do not sniff students directly."

The U.S. Supreme Court has never ruled directly on the use of drug-searching dogs in schools.

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Today we deal with Truth, justice, and the Connecticut way:

Equal Access Act: A federal appeals court ruled today that a Washington state school district did not violate the federal Equal Access Act or the First Amendment by denying recognition to a student Bible club because the club's charter conflicted with the district's non-discrimination policy.
However, because there were questions about whether the district violated the group's rights by refusing to exempt it from the policy based either on its religion or the content of its speech, the court reversed a summary judgment order in favor of the school district and ordered further proceedings.
The ruling by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, in Truth v. Kent School District is here.
The case involves a proposed student Bible group called Truth at Kentridge High School, and the core controversy is over the club's interest in limiting full voting membership in the club to students who pledge to abide "in good faith with Christian character, Christian speech, Christian behavior and Christian conduct as generally described in the Bible.”

Unitary Status in Tucson: "A federal judge essentially has released the Tucson Unified School District from a 30-year-old desegregation order," the Associated Press reports here. The opinion by U.S. District Judge David C. Bury is here.
The Tucson Citizen reports here that "much of the desegregation order, however, lost its bite in August, when Bury ruled TUSD's student assignment policy unconstitutional."
The judge's August order is here.

Connecticut School Funding: The Connecticut Supreme Court this week considered a lawsuit challenging the way the state funds public education. The Connecticut Coalition for Justice in Education Funding has a Web page devoted to its case, which is seeking to overturn a lower-court ruling that the state constitution does not mandate a minimum standard of quality for public education.
The Hartford Courant reports here.
Yale Law School has this press release about how two students in its Education Adequacy Clinic got to argue the case before the state high court justices.

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A federal appeals court has ordered that an Illinois student be allowed to wear a T-shirt that says "Be Happy, Not Gay" to protest the annual Day of Silence in support of gay students.

A three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, unanimously rejected arguments from the Indian Prairie school district in suburban Chicago that it should be able to bar a student from wearing the shirt on the school day after the Day of Silence because it would be derogatory and offensive to some students.

" 'Be Happy, Not Gay' is only tepidly negative; 'derogatory' or 'demeaning' seems too strong a characterization," U.S. Circuit Judge Richard A. Posner said in the opinion for the court in Nuxoll v. Indian Prairie School District No. 204. "As one would expect in a school the size of Neuqua Valley High School, there have been incidents of harassment of homosexual students. But it is highly speculative that allowing the plaintiff to wear a T-shirt that says 'Be Happy, Not Gay' would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere."

"Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the exercise of a student’s free speech," the judge added .

I wrote this story in this week's Education Week discussing the Day of Silence and some of the legal issues that have arisen out of it, including the Illinois case. I have a related blog post here.

The Day of Silence is scheduled for this Friday, April 25. The Day of Truth, an alternative event sponsored by the Alliance Defense Fund, which is when Illinois student Alexander Nuxoll wants to wear his "Be Happy, Not Gay" shirt, is scheduled for Monday, April 28.

UPDATE: My longer Education Week story on the ruling is now available here.

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A New York state appeals court upheld the New York City school system's controversial rules prohibiting students from carrying cell phones in schools, the Associated Press reports.

The ruling in Price v. New York City Board of Education comes from the New York State Supreme Court, Appellate Division. Keep in mind that in New York, the Supreme Court is the trial court level, the Supreme Court Appellate Division is the intermediate appeals court, and the Court of Appeals is the state's highest court.

"Ultimately, while the parents present cogent reasons why they would like their children to carry cell phones during the school day, our role is not to choose between two legitimate but competing interests," the appeals panel said. "Because the cell phone policy was within the department's power, judicial interference is not warranted."

Education Week reported on the cell-phone controversy in New York City schools here.

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A lawsuit challenging the U.S. Department of Education's regulations on highly qualified teachers under the No Child Left Behind Act goes before a federal district judge in San Francisco on Wednesday.

Public Advocates, one of the groups behind the suit, issued this media advisory. The suit contends that the NCLB statute defines a "highly qualified" teacher as one who has a full state teaching credential, while the Education Department's regulations improperly count teachers in alternative-certification programs as meeting the standard. The complaint is here.

Education Week reported on the suit here last year.

This case should be worth watching, not least for how the court evaluates regulations promulgated to carry out the NCLB law. Just today, Secretary of Education Margaret Spellings proposed a host of new NCLB rules. The department's summary page is here, and EdWeek's story is here.

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