The School Law Blog

A federal appeals court today ruled against two Massachusetts families who objected to their children being exposed in public school to books and discussions promoting tolerance for gay marriage and families led by same-sex couples.

A three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, ruled unanimously that the Lexington, Mass., school system did not violate the rights of the parents or children by exposing them to books that they found objectionable on religious grounds.

One family objected to their child being presented in kindergarten and 1st grade with two books that portrayed diverse families, including families with same-sex parents. The other family objected to a 2nd grade teacher's reading to their son's class a book that celebrated gay marriage.

The families challenged the school system's refusal to provide them with prior notice of such lessons and to allow their children to be exempted from them until 7th grade. Their suit cited their First Amendment free exercise of religion rights and their parental and privacy rights under the 14th Amendment's due-process clause.

In a lengthy opinion in Parker v. Hurley, the 1st Circuit panel said, "There is no free exercise right to be free from any reference in public elementary schools to the existence of families in which the parents are of different gender combinations."

Regarding the student who heard a reading on gay marriage, the court said there was no evidence the school system had sought to indoctrinate the boy on the issue or require him "to affirm gay marriage."

"Public schools are not obliged to shield individual students from ideas which potentially are religiously offensive, particularly when the school imposes no requirement that the student agree with or affirm those ideas," the court said.

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A federal appeals court today said it would take a fresh look at a case in which a student is challenging being strip-searched by school officials looking for prescription drugs.

The U.S. Court of Appeals for the 9th Circuit, in San Francisco, said in a brief order that the full court had voted to rehear the case of Redding v. Safford Unified School District.

The full court essentially set aside this September 2007 decision by a three-judge 9th Circuit panel that upheld the Safford, Ariz., district and various school officials over the student search.

According to that decision, middle school student Savanna Redding was searched as part of an investigation into prescription drug possession by students at the school in 2003. After receiving a report that Redding had been distributing Ibuprofen pills to fellow students, school officials searched the girl's backpack, then asked a female administrative assistant to search Redding's clothing. Redding had to remove her pants, lift the waist band of her underpants, and lift her shirt and pull out her bra band, according to court papers. No contraband was found.

Redding and her parents challenged the school officials' actions as a violation of her Fourth Amendment rights against unreasonable searches.

The 9th Circuit panel ruled 2-1 that the search was reasonable and that school officials were protected by qualified immunity. The dissenting judge said Supreme Court precedents in the area should give parents assurance that "their children will not be stripped and searched for giving another student the equivalent of two Advils."

Because the 9th Circuit court has such a large number of judges, its "en banc" rehearings don't usually involve all of the court's judges, but simply a larger number than the three-judge panel that originally heard the case.

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The U.S. Supreme Court has just issued the schedule for oral arguments for its April session, the final round of cases to be argued for decision in the court's 2007-08 term.

The absence of Crawford v. Metropolitan Government of Nashville and Davidson County (Case No. 06-1595) from the schedule means that that case, which concerns alleged retaliation against a witness in an investigation into sexual harassment in a school district central office, will be argued in the high court term that begins next October.

I reported on the Crawford case in the blog here and in Education Week here. The latter story also discusses how the Supreme Court's current term has been relatively light on education cases.

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The Jefferson County, Ky., school board heard a proposal on Monday for how it might be able to keep its schools integrated in the wake of the U.S. Supreme Court decision last year that restricted the consideration of race in assigning students to schools.

The Louisville Courier-Journal reports that race, income, and family education levels would be considered equally in assigning the district's 98,000 students to schools.

"Under the proposal, all schools--elementary, middle and high--must enroll at least 15 percent and no more than 50 percent of their students from neighborhoods that have income and education levels below the district average and higher-than-average numbers of minorities," the newspaper reports in its main story. The Courier-Journal has an impressive package of sidebar stories, maps, photos, and other elements on the proposal.

Teddy Gordon, the lawyer who led the legal challenge to the Jefferson County student assignment plan that was struck down by the Supreme Court, tells the paper that he questions whether the new proposal would stand up in court.

In Parents Involved in Community Schools v. Seattle School District, the justices ruled 5-4 to strike down two school districts’ race-conscious student assignment plans as a violation of the 14th Amendment’s equal-protection clause. Jefferson County, which includes Louisville, was the other school district in involved in the decision besides Seattle. Education Week reported on the initial decision here and here.

Meanwhile, the NAACP Legal Defense and Educational Fund recently published a manual for parents, educators, and advocates on what steps are still legally available to maintain racially diverse schools. The 95-page manual, Still Looking to the Future: Voluntary K-12 School Integration, is available in PDF form online or can be ordered from the organization.

"While altering the landscape of school integration, the Seattle/Louisville decision did not provide a clear set of rules and principles for school districts to follow, and created some confusion about what school districts and communities can do to promote integration in their schools," the manual states.

There are some other helpful documents out there for educators as they grapple with the Seattle/Jefferson County decision.

The National School Boards Association teamed up with the College Board last year to publish "Not Black and White," a guide to the Supreme Court's decision. And earlier, the NSBA had released "An Educated Guess: Initial Guidance on Diversity in Public Schools After PICS v. Seattle School District."

And the Hogan & Hartson law firm, which works with many school districts on diversity issues, put out its own guidance last year. The firm issued this document shortly after the decision last summer, and this updated guidance last September. (Thanks to Maree Sneed of Hogan & Hartson for the documents.)

Finally, for those who want more to chew on, the Harvard Law Review devoted several articles to analyzing the Seattle/Jefferson County race decisions in its November issue.

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In this week's print edition of Education Week, I have this story about the relatively few school-related cases that will be argued in the U.S. Supreme Court in its 2007-08 term.

The court has heard only one case directly involving a school district, and the justices deadlocked in that case, Board of Education of New York City v. Tom F.

The court is now finished accepting cases for argument in the current term. It will hear arguments for recently granted cases in February, March, and April, with decisions expected in all its pending cases by late June. While there is always a steady stream of education-related appeals that make their way to the high court, any such cases granted review in the months ahead would be heard in the court's next term beginning in October.

As I mention in my story, this term has been quite a contrast to the court's last term, in which six or seven cases were decided involving school districts, private schools, or teachers' unions. See our summary here.

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The Juneau, Alaska, school board is pursuing some $5,000 in legal fees from the former high school student whose "Bong Hits 4 Jesus" banner led to a landmark U.S. Supreme Court case, the Juneau Empire is reporting.

The justices ruled 6-3 last year in Morse v. Frederick that the banner unfurled by Joseph Frederick at an Olympic torch relay outside his high school was not protected speech under the First Amendment. Five members of the court signed an opinion that said school officials have the right to regulate drug-related messages on school campuses.

I reported on the decision in Education Week here, and had interviewed Frederick for a preview story here.

The Juneau newspaper says in its report that Frederick may have to return from his job in China to attend a deposition on his personal finances in the ongoing battle over legal fees owed to the school district. Frederick's lawyer tells the paper that the school district's attorney is engaging in "revenge, retaliation, and harassment" of the former student, a charge the school district lawyer denies. (Thanks to the How Appealing law blog for the tip on this story.)

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A federal appeals court today ruled against a family seeking to compel a school district to allow a service dog to accompany a student with a hearing impairment at school.

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, ruled unanimously that the parents had failed to exhaust their administrative remedies under federal special education law before suing the East Meadow Union Free School District.

According to the decision, the parents had asked school officials to allow their son to bring his service dog, Simba, to school. The dog would help alert the student to sounds and would increase his independence, the parents claimed.

School officials denied the request on the grounds that the student's education program would have to be modified to avoid exposing allergic students and teachers to the dog, according to court papers.

A federal district judge had denied the family's request for an injunction. The appeals court said the district court should not have even considered the case because the family did not exhaust administrative procedures under the Individuals with Disabilities Education Act.

In 2006, my Education Week colleague Christina Samuels wrote a nice feature story about the issue of service and "skilled companion" animals in the schools.

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The U.S. Supreme Court today ordered a federal appeals court to reexamine a securities-fraud case in which the California State Teachers' Retirement System is the lead plaintiff.

In a brief order, the justices told the U.S. Court of Appeals for the 9th Circuit, in San Francisco, to restudy the California case in light of their decision last week in Stoneridge Investment Partners LLC v. Scientific-Atlanta Inc. In that case, the court ruled that federal securities law does not allow fraud claims against third parties who did not directly mislead investors, even if they were business partners of companies that did so.

I reported on the Stoneridge case in the School Law Blog here because it had drawn friend-of-the-court briefs from several teacher-retirement systems, including the California system.

The case sent back for reconsideration today was Avis Budget Group Inc. v. California State Teachers' Retirement System (Case No. 06-43). That case concerned an alleged scheme to commit securities fraud by overstating the revenues of Homestore.com, an Internet real estate company. The 9th Circuit's original ruling in the case last June is here.

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The U.S. Supreme Court today declined to hear the appeal of a Virginia school district over whether the federal special education law requires that school officials offer a specific school site in the individualized education program for a student with disabilities.

The appeal in Alexandria City School Board v. A.K. (Case No. 07-541) involved the IEP developed for the 2004-05 school year for a student with multiple disabilities. The Alexandria district proposed day placements in two private schools, but the child's parents refused the IEP and sought reimbursement for placing their child in a different private school.

A 2-1 ruling last year by a panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., upheld reimbursement for the parents. The court held that the federal Individuals with Disabilities Education Act requires IEPs to include not merely the type of educational placement proposed for a student, but the name of the school where the IEP would be implemented.

The school district's brief argued that the 4th Circuit ruling was inconsistent with U.S. Department of Education regulations and with the decisions of at least four other federal appeals courts.

The district drew the support of a joint friend-of-the-court brief filed by the National School Boards Association, American Association of School Administrators, and the National Association of State Directors of Special Education. The education groups said "the 4th Circuit's ruling threatens the collaborative process and ignores the practical realities underlying the development of [IEPs] for children with disabilities."

The brief on behalf of the family argued that the 4th Circuit decision was consistent with the IDEA and with case law on the development of IEPs.

The Supreme Court declined to hear the school district's appeal without any recorded dissent.

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Secretary of Education Margaret Spellings issued a letter to state schools chiefs today to voice a more detailed disagreement with last week's federal appeals court ruling on the unfunded-mandates provision of the No Child Left Behind Act.

My colleague David Hoff has a more extensive post on the letter on his NCLB: Act II blog.

I wrote about the ruling in the School Law Blog here, and in an Education Week story.

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The U.S. Supreme Court today agreed to take up a case stemming from allegations of sexual harassment in a school district central office.

The question in Crawford v. Metropolitan Government of Nashville and Davidson County (Case No. 06-1595) is whether Title VII of the Civil Rights Act of 1964 protects a worker from being dismissed because she cooperated with her employer's internal investigation.

The appeal was brought by Vicky S. Crawford, who worked with Gene Hughes, the director of employee relations for the Metro Nashville school district. According to court papers, the Metro Nashville/Davidson County government, which includes the school district, began an investigation after receiving allegations that Hughes was harassing women in his office.

Crawford did not initiate the complaint about Hughes, but she cooperated with the inquiry and told investigators about crude sexually related comments that Hughes allegedly made, including to her, court papers say.

Within a few months, Crawford was fired from her job. She sued under an anti-retaliation provision of Title VII, but she lost in both a federal district court and the U.S. Court of Appeals for the 6th Circuit, in Cincinnati.

The Bush administration urged the Supreme Court to take up the case, arguing in a brief that Title VII protects those who cooperate with internal investigations from retaliation.

Crawford also drew the support of the Tennessee Education Association and the Metropolitan Nashville Education Association, which argued in a joint brief that the case "implicates the employment interests of teachers and others who may be called upon to testify or provide information in internal investigations of discrimination and harassment."

The Metro government of Nashville and Davidson County had urged the court not to accept the case for review, arguing that "participation in an in-house sexual harassment investigation, not undertaken while any [Equal Employment Opportuntiy Commission] charge is pending, is not a protected activity under Title VII."

The Supreme Court granted review of Crawford's appeal today on an expedited basis, meaning it could be heard in April, during the court's last argument session of the current term. But over at SCOTUSBlog, Lyle Denniston notes that not all the cases granted today will necessarily be argued this term, and that some may be carried over until next fall. (And thanks to SCOTUSBlog for the links to the briefs.)

The Supreme Court has decided at least one other case stemming from alleged sexual harassment in a school district central office. In Clark County School District v. Breeden in 2001, the court issued an unsigned opinion that reiterated its view that a single incident in which an employee makes a sexually explicit comment does not constitute illegal sex discrimination under Title VII.

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A federal appeals court ruled today that remedies available under the main federal special education law do not limit parents from also pursuing claims under a broader federal law barring discrimination against people with disabilities.

"The availability of relief under the Individuals with Disabilities Education Act does not limit the availability of a damages remedy under" U.S. Department of Education regulations for Section 504 of the Rehabilitation Act, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, said in a unanimous ruling.

In a case from Hawaii, the court held that the requirements for a "free, appropriate public education" in both IDEA and the Rehabilitation Act regulations are "overlapping but different."

The IDEA focuses on the provision of appropriate education services to children with disabilities. The Rehabilitation Act of 1973 that more broadly addresses state services to people with disabilities. Section 504, the Rehabilitation Act's central provision barring discrimination against people with disabilities, applies to all public schools that receive federal funds.

The appeals court overturned a 2005 federal district court ruling that had said "there are no rights, procedures, or remedies available under Section 504 for violations of IDEA's affirmative obligations" and that the federal Education Department's Section 504 regulations are not enforceable through private lawsuits.

The appeals panel returned a family's special education lawsuit against the Hawaii public school system to the district court for further consideration.

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A federal appeals court today partially reinstated a parent's lawsuit against a school district and superintendent stemming from the treatment of the parent's daughter, who has diabetes.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Detroit, ruled unanimously that the parent may have a valid claim that the superintendent retaliated against her for public criticisms that were protected by the First Amendment.

The case stems from what appears to have been a nasty spat between the parent and the district over such things as whether the school nurse would administer the student's insulin shots and whether the superintendent tried to bar the student from returning to her school.

The appeals court upheld the dismissal of most of the parent's claims. But as to the claim over retaliation for protected speech, it said "a jury could conclude [the superintendent's] alleged actions, dismissing [the student] from school, being involved in making a false report to Children Services, and refusing to provide home-school education through the services of a tutor, would chill a person of ordinary firmness from engaging in speech."

The parent's lawsuit now heads back to a federal district court for further proceedings.

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A school principal did not violate the First Amendment rights of a 5th grader when she barred him from distributing candy cane-shaped Christmas ornaments with an attached card promoting Christianity, a federal appeals court ruled today.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Detroit, ruled unanimously in Curry v. Hensinger to uphold qualified immunity for the principal of the Handley School in Saginaw, Mich.

The student, Joel Curry, had sought to sell the "candy canes," which actually were pipe cleaners and beads shaped to look like the Christmas confection and meant as ornaments, at a school event called "Classroom City" in 2003. According to the opinion, the event was part of the 5th grade curriculum and involved the students developing and selling products at a three-day fair to other students. The products had to be approved by teachers in advance.

After winning approval of his product, Joel added a card to each ornament that conveyed Christian meanings to the candy cane, such as that the color red signified "God's love that sent Jesus to give his life for us on the cross" and that the shape symbolized the staff used by sheperds.

After discovering the cards, school principal Irene Hensinger met with Joel's mother and said the student would not be permitted to sell the candy canes with the cards at the Classroom City event because the event was considered instructional time and the cards' religious content was inappropriate.

In a lawsuit backed by the Alliance Defense Fund, Joel's parents sued the Saginaw district and the principal, alleging that Joel's First Amendment free expression rights were violated. A federal district judge ruled in 2006 that the district and the principal had violated Joel's First Amendment rights, but that the defendants were entitled to qualified immunity.

The 6th Circuit appeals court applied the U.S. Supreme Court's ruling in Hazelwood v. Kuhlmeier as covering expressive activities that are part of the school curriculum, such as the Classroom City fair. (The ruling comes just a few days after the 20th anniversary of Hazelwood, which I discussed on the blog yesterday.)

"Joel’s candy cane with the religious card attached was not simply a personal religious observance, analogous to wearing a cross, or a T-shirt with a slogan," the court said. "The school’s desire to avoid having its curricular event offend other children or their parents, and to avoid subjecting young children to an unsolicited religious promotional message that might conflict with what they are taught at home qualifies as a valid educational purpose."

The Alliance Defense Fund notes that the U.S. Department of Justice had filed this brief supporting the student in the district court. It's not clear whether the Bush administration had also filed a brief in the appeals court. It is not listed as having done so.

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This week marks the 20th anniversary of the U.S. Supreme Court's decision in Hazelwood v. Kuhlmeier, which gave school administrators sweeping authority to regulate student speech in school-sponsored publications and activities.

In the Jan. 13, 1988, ruling, the court held 5-3 that the principal of Hazelwood East High School in suburban St. Louis did not violate the First Amendment rights of journalism students when he withheld publication of two pages of the student newspaper because of concerns he had about articles on divorce and teenage pregnancy.

Justice Byron R. White wrote for the majority that "educators are entitled to exercise greater control" over speech that is part of the school curriculum "to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that views of the individual speaker are not erroneously attributed to the school."

Writing in dissent, Justice William J. Brennan Jr. said, "The young men and women of Hazelwood East expected a civics lesson, but not the one the court teaches them today."

He said the ruling "cast doubt on the vitality" of the court's 1969 landmark decision on students' right to free speech, Tinker v. Des Moines Independent Community School District.

"Tinker teaches us," Justice Brennan said, "that the state educator's undeniable, and undeniably vital, mandate to inculcate moral and political values is not a general warrant to act as 'thought police' stifling discussion of all but state-approved topics and advocacy of all but the official position."

Education Week's ace Supreme Court reporter at the time, Tom Mirga, reported on the decision in January 1988, while my colleague Debra Viadero reported about the "ripple effect" of the ruling about a month later.

Now the case is coming in for some 20th anniversary reflection.

In an op-ed piece in The Washington Post over the weekend, Richard Just writes that the Hazelwood decision not only "changed the way journalism is taught at many schools, it has made it more difficult for high school students to learn the important lessons about democracy that come from publishing--or simply reading--serious newspapers."

Just, the deputy editor of The New Republic, adds that for six years, he has directed a program for about 20 high school journalists at Princeton University. The students are "talented writers and thoughtful intellectuals," he says, "yet, by and large, they work for newspapers that are either explicitly censored or restrained by the looming threat of official disapproval."

The Student Press Law Center has a package of stories on the 20th anniversary of the Hazelwood decision in the winter 2007-08 issue of its magazine, SPLC Report.

In the cover story, Maggie Beckwith reports that high school newspaper advisers say Hazelwood resulted not only in "more censorship by the administration, but also self-censorship by student journalists." In a companion piece, Casey Wooten reports that what constitutes a "legitimate pedagogical concern" that would justify administrator intrusion into a school newspaper remains a subject of vigorous debate among educators and legal experts. And in another article in the package, Wooten reports on "administrators who choose to reject the power they could exercise under Hazelwood" and give student journalists wide latitude to publish what they want.

I have searched in vain the Web sites of the National School Boards Association, the National Association of Secondary School Principals, and the American Association of School Administrators for any content recognizing the 20th anniversary of Hazelwood, a ruling administrators generally applauded at the time.

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In a case being watched closely by teacher-retirement funds, the U.S. Supreme Court ruled today that a federal securities law does not allow fraud claims against third parties who did not directly mislead investors, even if they were business partners of companies that did so.

The issues in Stoneridge Investment Partners LLC v. Scientific-Atlanta Inc. (Case No. 06-43) are pretty far afield from education law that affects the classroom. But the case drew friend-of-the-court briefs from the California State Teachers' Retirement System, the New York State Teachers' Retirement System, and the New York City Board of Education Retirement System, among others, on the side of shareholders who were seeking to hold third parties liable for alleged corporate fraud. (Thanks to SCOTUSBlog for the links to the briefs.)

I wrote about the case in Education Week after oral arguments in October. The teacher-retirement funds generally argued that they are some of the most active institutional investors and see themselves as trying to improve the integrity of the public markets in the wake of Enron and other corporate scandals.

Writing for the court in a 5-3 decision, Justice Anthony M. Kennedy said the companies being targeted in the lawsuit, Scientific-Atlanta and Motorola Inc., had done business with cable-TV company Charter Communiciations Inc. as ordinary business partners and suppliers, and investors in Charter did not rely on those companies' statements or misrepresentations "in the investment sphere."

In dissent, Justice John Paul Stevens said that Charter "inflated its revenues by $17 million in order to cover up a $15 to $20 million expected cash flow shortfall. It could not have done so absent the knowling fradulent actions of Scientific-Atlanta Inc. and Motorola Inc."

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The U.S. Supreme Court today declined review of an appeal involving special education services for preschoolers.

The question in D.P. v. Broward County School Board (Case No. 07-613) was whether a 3-year-old who transitions from early-intervention services under Part C of the Individuals with Disabilities Education Act to preschool services under Part B of the law is entitled to continue receiving the early-intervention services until the completion of a review of the child's proposed preschool program. (That is a paraphrase that sticks very close to how the family's lawyers phrased it in their appeal to the high court.)

The case involves triplets, identified in court papers as E.P., D.P, and K.P., who are now 7 years old and have been diagnosed with autism spectrum disorder. The family's suit said the Broward County school district refused to develop valid individualized education programs for the children under Part B of the IDEA after they "aged out" of Part C when they turned 3 years old. The district also refused to continue the Part C services on an interim basis, the family alleged.

Last year, a panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, issued a 2-1 decision that the IDEA does not require the school district to continue the Part C plan until an IEP is developed under Part B.

The group Autism Speaks had filed a friend-of-the-court brief on the side of the family urging the justices to take up the case. "For an ever-growing population of children diagnosed with autism spectrum disorders, a lapse in appropriate services during the window of opportunity would be devastating," the group's brief says. (Unfortunately, I cannot find a link to the brief on Autism Speaks Web site.)

The justices declined without comment to hear the family's appeal, which is not a ruling on the merits of the case.

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It's been a banner week for teachers' unions in the federal courts. On Monday, the National Education Association won a big federal appeals court ruling reviving its legal challenge to the No Child Left Behind Act.

Now, the Utah Education Association, an NEA affiliate, has won a ruling that says a state law barring state and local public employers from withholding workers' voluntary political contributions violates the First Amendment. The UEA was joined by several other state public-employee unions in its challenge to the law.

In the case of teachers, those voluntary contributions are typically designated for teachers' union political action funds.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit, in Denver, ruled unanimously that Utah's Voluntary Contributions Act is unconstitutional under the First Amendment as applied to school districts and other local public employers in the state.

"By banning a contribution method preferred by many union members, the VCA increases the difficulty of contributing to labor union political funds," and thus the law "burdens political speech," the court said in its Jan. 10 decision.

No reaction on the Web yet from the Utah attorney general's office, which defended the law, or anti-union groups that had filed court briefs in support of it, such as the Evergreen Freedom Foundation and the National Right to Work Legal Defense Foundation.

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This grant opportunity caught my eye:

"The Courts and K-12 Education" is the inaugural theme for a new grant program for scholars by the Thomas B. Fordham Institute.

The Fordham Scholars grant program will aim to assist advanced doctoral students and junior faculty members in such areas as economics, law, and political science.

The announcement says "successful projects in this year's round will examine how the courts (state, federal, etc.) may affect the ability of educators, policymakers, and entrepreneurs to foster stronger pupil achievement; greater choices for families; more efficient school operations; promising innovations in curriculum, instruction, school organization and, leadership; and sound, workable accountability mechanisms."

Sample topics: Litigation's effects on school discipline, legal barriers to hiring effective school leaders (and firing ineffective ones), and tort litigation's impact on physical education.

The grants will range from $15,000 to $25,000, and the application deadline is Feb. 15.

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A federal judge has ruled that a rural Missouri school district's longstanding practice of allowing Gideon Bibles to be distributed to students is unconstitutional, the Associated Press reports.

The judge's opinion says that both the South Iron R-1 school district's earlier policy allowing classroom Bible distribution and an amended policy allowing the distribution before and after school and during lunch breaks violates the First Amendment's prohibition against government establishment of religion.

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In a case being watched by education groups, the U.S. Supreme Court heard oral arguments today on whether certain disparities in Kentucky's public-employee retirement system violate a federal age-discrimination law.

By the end of the hourlong argument, it seemed clear that a majority of the justices disagreed with the position of the Bush administration, through the Equal Employment Opportunity Commission, that Kentucky's system violates the Age Discrimination in Employment Act of 1967.

The case arose because of the different ways the retirement system handles workers who retire for disability reasons and those who retire because they have served the requisite length of time, which in Kentucky is 20 years of service or at age 55 with five years of employment.

An employee of the Jefferson County, Ky., sheriff's department who was 61 years old when he sought disability retirement was told he could only retire under the regular retirement plan. The employee sued with the aid of the EEOC, which argued that Kentucky's plan provided lesser benefits to certain older workers who sought to retire on disability, and thus discriminated against them based on age.

"In calculating benefits, Kentucky uses age an eligibility factor in a way that disadvantages older employees," Malcolm L. Stewart, an assistant to the U.S. solicitor general, told the court in Kentucky Retirement Systems v. EEOC (Case No. 06-1037).

Robert D. Klausner, a lawyer representing the state and its retirement plans, said, "Age is not a bad word. All retirement plans necessarily make distinctions based on age."

The National School Boards Assocation, in a friend-of-the-court brief filed on Kentucky's side, argues that some school districts' early-retirement incentive plans have run into objections from the EEOC on age-discrimination grounds.

"The ADEA prohibits only arbitrary age discrimination," the NSBA's brief says.

During the oral arguments, Justice Stephen G. Breyer said he saw no indications that Kentucky had based its retirement systems on invidious age-based stereotypes.

"We're talking about age, which is not an immutable characteristic," Breyer said. "Everybody gets older."

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A case to be argued in the U.S. Supreme Court on Wednesday over state and local-governmental early-retirement programs has drawn the interest of education groups.

In Kentucky Retirement Systems v. Equal Employment Opportunity Commission, the justices are essentially weighing whether it is OK for age to be a factor in an early-retirement system. That may sound like it borders on the absurd, but at issue is whether Kentucky violates the federal Age Discrimination in Employment Act by its disparate treatment of workers seeking disability retirement versus those seeking early retirement based on years of service.

The National School Boards Association has filed a friend-of-the-court brief on the side of the state, mainly to stress to the court the importance of early-retirement incentive plans for school districts and states.

The National Council on Teacher Retirement, an organization of state and local teacher retirement plans, has joined several other groups on a friend-of-the-court brief, also on the state's side.

I plan to attend the arguments tomorrow and get a better understanding of the issues in this case.

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The Associated Press is reporting that a company and a school district's test of putting electronic-tracking chips in students' backpacks is raising the hackles of the American Civil Liberties Union.

According to the AP, the pilot test in the Middletown, R.I., district would put the so-called radio frequency identification (RFID) chips in or on the backpacks of some 80 students, as well as a global positioning system device on their schoolbuses. The main goal appears to be to track whether students are on the bus when they should be.

The head of the Rhode Island chapter of the ACLU tells the AP it is one thing for the school district to track its buses, but quite another to track children. It has sent a letter to the district objecting to the pilot test as an "intrusion on students' privacy" that could actually make them less safe, because the data on RFID chips can be intercepted.

The district's superintendent tells the AP that the tracking system would be no different than systems that allow parents to see what their children had for lunch or their attendance records.

In 2005, Education Week reported on school districts' growing use of technology to track students, from bus systems to student ID badges that contain electronic chips.

Posted by Mark Walsh at 12:30 PM | Permalink | Comments (1) | TrackBacks (0)

Today's ruling by a federal appeals court reviving a legal challenge to the No Child Left Behind Act is unquestionably a major victory for the National Education Association and a coalition of school districts.

The NEA's suit on behalf of itself, some of its state affiliates, and nine school districts in Michigan, Texas, and Vermont had been languishing in the U.S. Court of Appeals for the 6th Circuit for more than two years after a federal district judge in Detroit had dismissed the suit in 2005.

But now a majority on a three-judge panel of the 6th Circuit court says that the "unfunded mandates provision" of the No Child Left Behind law essentially means what it says: That the federal government cannot require a state or a school district "to spend funds or incur any costs not paid for under this act."

"NCLB, by its terms, fails to provide clear notice of the states' obligation to incur additional costs to comply with the act's requirements," says the opinion by U.S. Circuit Judge R. Guy Cole Jr.

The big question now is, what does this ruling mean in practical terms for states and school districts? The 6th Circuit court was vague on that, returning the case to the district court for further proceedings. The Bush administration would seem likely to appeal the ruling to the full 6th Circuit court or directly to the U.S. Supreme Court. I haven't seen any comment from the administration yet.

In a lengthy interview I just had with Robert H. Chanin, the general counsel of the NEA and the architect of the lawsuit, he indicated that he believes the union got exactly what it had asked for, and that in his view school districts will not have to spend money for obligations under NCLB that aren't funded by the federal government.

UPDATE at 5 p.m. ET: In an e-mailed statement responding to the ruling, Secretary of Education Margaret Spellings says the federal government is exploring all its legal options.

"This decision could undermine efforts to improve the education of our nation's children, in particular those students most in need," Spellings said. "No Child Left Behind is not an unfunded mandate but rather a compact between the states and the federal government, which asks that in exchange for federal dollars, results be demonstrated."

Posted by Mark Walsh at 4:21 PM | Permalink | Comments (1) | TrackBacks (0)

In a significant development just as the No Child Left Behind Act is turning 6 years old this week, a federal appeals court has revived a major lawsuit challenging the federal education law as an unfunded mandate.

The opinion by the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, is here.

Education Week reported in 2005 on a federal district judge dismissing the suit, which is backed by the National Education Association.

I'll have more on the 6th Circuit decision soon.

Posted by Mark Walsh at 12:00 PM | Permalink | Comments (0) | TrackBacks (0)

In this week's "Law & Courts" column in Education Week, I explored a couple of recent court rulings about what I thought was an interesting question: Do students have a due-process right to confront the witnesses against them in school disciplinary cases?

As I discussed in the column, two courts in New Mexico and Illinois answered "no." As it turns out, most courts that have confronted the issue (no pun intended) have also ruled against students, citing such things as the complexity such a right would add at the school disciplinary level, the potential effect on whether students would be willing to inform administrators of their peers' rule-breaking, and even the prospect of retaliation against student witnesses if they had to confront the accused.

The New Mexico Court of Appeals decision can be found here.

Unfortunately, for the Illinois case, the U.S. District Court for the Northern District of Illinois' opinion is not readily available on the Web. I will post it later if I can.

Posted by Mark Walsh at 11:40 AM | Permalink | Comments (1) | TrackBacks (0)