The School Law Blog

The U.S. Supreme Court today declined to review the case of an 8th-grader who was suspended for an off-campus Internet message with a drawing that suggested a teacher should be shot and killed.

The justices declined without comment to hear the appeal of the family in Wisniewski v. Board of Education of the Weedsport Central School District (Case No. 07-987).

According to court papers, Aaron Wisniewski was a student at Weedsport Middle School in 2001 when he sent an instant message on America Online to a friend with an icon featuring a pistol firing bullets at a person's head, with the words "Kill Mr. VanderMolen." Philip VanderMolen was the youth's English teacher. Wisniewski was suspended for one semester for the message.

The family challenged the discipline in court, arguing that the boy's speech was protected by the First Amendment because it was not a true threat.

Both a federal district court and the U.S. Court of Appeals for the 2nd Circuit, in New York City, ruled for the school district.

The appeals court panel said in its unanimous opinion the student's transmission of the icon "crosses the boundary of protected speech and constitutes student conduct that poses a reasonably forseeable risk that the icon would come to the attention of school authorities and that it would materially and substantially disrupt the work and discipline of the school."

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The U.S. Supreme Court today agreed to review an Idaho state law that bars school districts and other local government agencies from making deductions from union members' paychecks for the unions' political activities.

The court accepted the state's appeal in Ysursa v. Pocatello Education Association (Case No. 07-869), in which the state is defending the federal constitutionality of its Voluntary Contributions Act. The law was passed in 2003, and was challenged by the Idaho Education Association, its Pocatello local, and other public employee unions in the state.

The ruling below by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, which struck down the VCA, is here.

UPDATE I: SCOTUSBlog has the state's appeal here, the unions' response here, and a friend-of-the-court brief by several groups on the state's side here.

I'm working on a Web story on this grant this morning, so there should be more on edweek.org soon. UPDATE II: My Web story is now available here.

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The U.S. Supreme Court’s decision last year in the “Bong Hits 4 Jesus” student speech was not a grand slam for educators, a lawyer said today at the Council of School Attorneys meeting in Orlando.

“I don’t think we even hit a double,” Michael E. Smith said in his analysis of Morse v. Frederick. In that case, the court held that the “Bong Hits” banner displayed at a school-related event by a high school student was not protected under the First Amendment. The justices also held that the principal who disciplined the student should have been given qualified immunity from the student’s lawsuit. (Read Education Week's preview here, and decision story here.)

Smith, a Fresno, Calif., lawyer who represents school districts, said there was much to like in the decision from a school attorney’s or administrator’s perspective. But the opinion by Chief Justice John G. Roberts Jr. also has language that takes student speech jurisprudence back to the “slippery slope” of a standard permitting regulation of “plainly offensive” speech, Smith said, which is very hard to define. The plainly offensive standard comes from Bethel School District v. Fraser .

Still, Morse allows schools to restrict speech promoting illegal drug use. And there is language in the concurring opinion of Justice Samuel B. Alito Jr. that potentially helps schools deal with speech that adds to dangers in schools. (“Experience shows that schools can be places of special danger,” Alito said.)

Smith said one of the most developing areas of student speech law involves expression viewed as impinging on the rights of other students, such as the cases involving anti-gay T-shirts.

This area “will present that fundamental clash between our duty to provide a safe school environment and the free speech rights of students,” Smith said.

I agree that this is one area where some of the most newsworthy cases will be unfolding.

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The U.S. Supreme Court’s major decision from last year on race in K-12 education is still being debated among educators, lawyers, and others.

That much was clear during the opening session of the National School Boards Association’s Council of School Attorneys meeting here in Orlando. The court’s decision in Seattle School District v. Parents Involved in Community Schools was the basis for a sharp, but civil, 90-minute discussion.

“Our nation is not yet color blind,” said Anurima Bhargava, the director of education practice for the NAACP Legal Defense and Educational Fund in New York City. She stressed the portions of Justice Anthony M. Kennedy’s key concurring opinion that left the door open for public schools to consider race.

“Justice Kennedy took some time to say race matters,” she said. (The LDF has issued a manual for interpreting the decision.)

Roger Clegg, the president and general counsel of the Center for Equal Opportunity in Washington, urged educators to follow the majority/plurality opinion of Chief Justice John G. Roberts Jr., which struck down the race-conscious student assignment policies in the Seattle and Jefferson County, Ky., school districts.

“The safest thing to do is ignore race,” Clegg said.

Carl A. Gallagher, an education lawyer in Kansas City, Kan., said that from a practical perspective, the high court’s Parents Involved ruling has settled relatively little with regard to which race-conscious policies schools may adopt.

“If any of you can tell me what plan Kennedy would approve, please tell me,” he said to the school attorneys gathered at the sumptuous Royal Pacific Resort at Universal Orlando. “I can’t give a school district good solid advice on this.”

The Council of School Attorneys' seminar program continues over the weekend, then segues into the much-larger annual meeting of the National School Boards Association. A highlight of that is Saturday’s scheduled keynote address by retired Justice Sandra Day O’Connor, who was not on the court when the Seattle and Jefferson County cases were decided.

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The next issue of Education Week will have these school law-related stories, which are available on our Web site now.

My colleague Alyson Klein has this story about the Department of Education's proposed new regulations on the Family Educational Rights and Privacy Act, which include provisions about the sharing of information about potentially dangerous students.

And I have this Law & Courts column on the U.S. Supreme Court's decision this week to grant review of a case that will allow the justices to reconsider an important precedent on qualified immunity for public officials.

In granting review in Pearson v. Callahan (a case stemming from a police search), the justices asked the parties to address whether their 2001 ruling in Saucier v. Katz should be overruled.

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A state appellate court in California says it will reconsider its controversial ruling that parents have no state constitutional right to home school their children, The San Francisco Chronicle reports.

Education Week reported on the Feb. 28 decision by the 2nd District California Court of Appeal here, and I blogged about it here. The court said state law requires children to be taught by credentialed teachers, a decision that had the home-schooling community up in arms.

The Chronicle story says that while it is not unusual for appellate courts in the state to reconsider rulings and then make only minor, technical changes, the 2nd District panel indicated it would undertake a broader review of its decision. The panel invited written arguments from state and local education officials and from teachers' unions and will hold a new hearing in the case in June, the paper says.

(Thanks to How Appealing for the tip.)

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An en banc panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, is hearing oral arguments today in the case of a student who challenged a strip search conducted by school officials looking for prescription drugs.

I blogged about the case of Redding v. Safford Unified School District here in January, when the 9th Circuit agreed to have a larger panel of judges review the case.

The September 2007 ruling by a three-judge panel of the 9th Circuit in favor of school officials in the case, which has been essentially set aside by the full court's en banc review, is here.

The American Civil Liberties Union, which is representing the student, has a press release that includes links to its briefs in the case. I don't see the school district's briefs online anywhere.

The oral arguments in this closely watched case were scheduled for 9:30 a.m. Pacific time before an 11-judge panel of the court. I don't know whether the 9th Circuit plans to allow cameras in the courtroom, as it sometimes does. In the past, C-SPAN has featured 9th Circuit arguments on its "America and the Courts" show.

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A few odds and ends at the end of the week:

ACLU Lawsuit Over Poor Graduation Rates: My Education Week colleague Christina Samuels has this story about the American Civil Liberties Union-backed lawsuit claiming that the Palm Beach County, Fla., school district's low graduation rate violates the state constitution's guarantee of a "high-quality" education.

Over at The Edjurist Accord, Justin Bathon has this post calling the lawsuit "very creative," even if he believes its chances of success are slim.

NYC Principal Loses Another Round: The U.S. Court of Appeals for the 2nd Circuit in New York City has denied a preliminary injunction for the embattled former principal of the Khalil Gibran International Academy in a controversy over her defense of the word "infitada" on a T-shirt.

Over at How Appealing, Howard Bashman has a good roundup of coverage about the case here.

Education Week reported on the case last fall.

The Supreme Court on Guns and School Violence: I have this Education Week story on two developments in the U.S. Supreme Court this week. The court accepted an appeal that arises out of a criminal case over a driveby shooting at a Seattle high school. And the court heard arguments in the major gun rights case out of the District of Columbia, in which concerns over school violence was at least touched on briefly in the oral arguments and in friend-of-the-court briefs.

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Lawyers for the National Education Association are urging a federal appeals court not to reconsider a ruling by a three-judge panel of the court that revived the union's legal challenge to the No Child Left Behind Act.

The U.S. Court of Appeals of the 6th Circuit, in Cincinnati, is considering whether to give "en banc," or full court, review of Pontiac School District v. Spellings. The panel ruled in January that the states were not on clear notice of their potential financial obligations when they agreed to accept federal funding under the No Child Left Behind law.

In its February request for review of that ruling by the full 6th Circuit, lawyers for U.S. Secretary of Education Margaret Spellings said "the ramifications of the decision are immediate and irreparable, and they extend for the indefinite future."

Now comes the response filed March 18 by the NEA, which organized the lawsuit on behalf of some of its state affiliates and nine school districts in Michigan, Texas, and Vermont.

"Plainly, the panel was correct in holding that the NCLB does not unambiguously put states and school districts on notice that, if they accept NCLB federal funds, they will be required to 'spend ... funds or incur ... costs not paid for under this act," the NEA brief says, quoting the "unfunded mandates" provision of the federal education law.

Robert H. Chanin, the general counsel of the NEA, told me today that it will probably be a few weeks before the 6th Circuit's judges decide whether to grant Spellings' request for the full review.

Read some of my most recent blog items on the case here and here, and our last big Education Week story on the case here.

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I've been away for a couple of days for a St. Patrick's Day visit to New York City, but I wanted to note a couple of developments at the U.S. Supreme Court this week.

District of Columbia Handgun Ban

Yesterday, the justices heard arguments in a major case on gun rights. In District of Columbia v. Heller, the court will explore the scope of the Second Amendment right to keep and bear arms. Amid the hundreds of pages of friend-of-the-court briefs filed in the case, a couple bear mentioning here in the School Law Blog.

The city of Chicago and its board of education filed a brief in support of the District of Columbia's prohibition against most private ownership of guns. The brief points out that in the last school year, 29 Chicago public schools students were killed in firearms-related violence. The district has confiscated more than 100 guns on school grounds since 2000, the brief says.

"Against this backdrop, [Chicago and the school system] consider it imperative that ... states be free to regulate firearms as they deem appropriate to the particular conditions in their communities," the city's brief says.

In another brief on D.C.'s side, the American Academy of Pediatrics, the Children's Defense Fund, and three other groups argue that handguns are a major public health threat to children.

'Because of their accessibility, manageability, and physical appeal, handguns in the home pose a unique threat to children and youth," the groups say.

School Shooting

Meanwhile, the court announced on Monday that it would take up an appeal stemming from a gang-related drive-by shooting at a Seattle high school in which a 16-year-old girl student was slain.

The issue in Waddington v. Sarausad is not one of school law. It involves whether the driver of the car in which the shooter was a passenger may be convicted as an accomplice to murder when the trial judge's jury instructions were potentially deficient.

The state of Washington's brief is here, and the response is here. The Seattle Times reported on the Supreme Court's decision to review the case here, and the Seattle Post-Intelligencer here.

The court will hear the case next fall.

Broadcast Indecency

Are children harmed when musicians and other celebrities utter vulgar expletives when they speak at TV awards shows? The Federal Communications Commission would answer yes, and that is the underlying issue behind a case the Supreme Court agreed to take up.

In its appeal in FCC v. Fox Television Stations Inc., the federal agency is seeking to uphold fines against stations that carried the "Billboard Music Awards" show in 2002 and 2003, when Cher and Nicole Richie uttered the f-word on the air.

"The commission found that the language used was not only graphic and shocking—particularly in the context of nationally televised awards programs viewed by a substantial number of children—but was also gratuitous," says the FCC's appeal of a federal appeals court ruling that the commission's policy on punishing isolated expletives was arbitrary and capricious.

The justices will also hear this case next fall.

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I have two stories in next week's Education Week that I thought might bear mentioning here.

The first involves the Chicago corruption trial of businessman Antoin "Tony" Rezko. What does that have to do with education? Find out in my story here. But I'll also give you a clue. Many of the federal government's fraud charges involve Rezko's alleged role in manipulating investment contracts of the Illinois Teachers' Retirement System.

For those who really like digging into legal documents, the government's indictment is here, a key "proffer" detailing its case is here, and a response by Rezko's lawyers is here. (The last two are thanks to the Chicago Tribune.)

Also in next week's EdWeek, I have a short item about the scandal in New York state over school districts that put their school attorneys on the full-time payroll, which allowed them to qualify for state pensions. My story is here, and my earlier blog item is here.

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The Washington state constitution provides more protection from suspicionless searches than the federal constitution does, the state supreme court held today in striking down a school district's drug-testing policy for student athletes.

"We decline to adopt a doctrine similar to the federal special needs exception in the context of randomly drug testing student athletes," said a plurality opinion by four justices on the nine-member court.

The state constitutional provision at issue says, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."

The plurality notes that the state supreme court "has a long history of striking down exploratory searches not based on at least reasonable suspicion."

"If we were to allow random drug testing here, what prevents school districts from either later drug testing students participating in any extracurricular activities, as federal courts now allow, or testing the entire student population?" the opinion said.

The plurality opinion in York v. Wahkiakum School District No. 200 is here. There were three concurrences in the case, and they can be accessed here.

Of course, the state court takes note of the U.S. Supreme Court's two rulings on drug testing of students, Vernonia School District v. Acton (1995), which upheld random drug testing of student athletes under the Fourth Amendment, and Board of Education of Independent School District No. 92 v. Earls (2002), which upheld such testing for students involved in a larger definition of extracurricular activities.

Education Week reported on the Vernonia decision here, and on the Earls decision here.

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A federal district judge has turned away an initial legal challenge to the Jefferson County, Ky., school district's racial diversity plan developed in the wake of the U.S. Supreme Court ruling that struck down the district's earlier plan.

The Associated Press reports here, and the Louisville Courier-Journal reports here.

The revised plan will use geography to maintain racial diversity in the district's schools. I blogged about the plan here when it was released in January.

According to the news accounts, U.S. District Judge John Heybourn II of Louisville told the lawyer challenging the new plan, Teddy Gordon, that the policy is not an "obvious, clear-cut" violation of the Supreme Court's ruling in Parents Involved in Community Schools v. Seattle School District, which covered both Seattle's and Jefferson County's race-conscious student assignment plans. If Gordon finds a plaintiff he believes is actually harmed under the Kentucky district's new plan, he should file a new legal challenge to the plan, the judge said.

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The season for graduation-prayer controversies is upon us.

But a prayer lawsuit in Texas appears to have been settled somewhat amicably.

A federal district judge in Austin has approved a settlement that bars the Round Rock Independent School District from allowing students to vote on whether to have any form of prayer, benediction, or invocation at graduation ceremonies.

The suit by unidentified plaintiffs was backed by Americans United for Separation of Church and State in Washington. The group's press release is here, and the settlement document is here.

The settlement says such student votes will be barred unless the U.S. Supreme Court specifically rules to allow school districts to hold student elections on graduation prayers, or if the high court overturns or limits its 2000 decision in Santa Fe Independent School District v. Doe.

In that case, the court ruled that student-initiated, student-led prayers at high school football games violated the First Amendment's prohibition against government establishment of religion.

The Austin American-Statesman reports here that the superintendent of the Round Rock district was pleased to have the case settled and that the school board had already decided to end student votes on graduation prayers.

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A college math teacher who was dismissed after altering her state loyalty oath has been reinstated, two California newspapers report.

I blogged here about Marianne Kearney-Brown, a Quaker graduate student who was teaching remedial math at California State University-East Bay. Citing the Quaker religion's commitment to non-violence, Kearney-Brown inserted the word "nonviolently" in front of the state Oath of Allegiance's language calling on her to swear or affirm that she would "support and defend" the state and U.S. constitutions "against all enemies, foreign and domestic." The oath is required of K-12 public school employees in California, too, and Kearney-Brown had worked in two school districts where she had modified her oath without incident.

The San Francisco Chronicle reports here that "In a grievance hearing Thursday conducted in a telephone conference call, an attorney for the California State University chancellor's office presented Kearney-Brown with a statement saying in part, 'Signing the oath does not carry with it any obligation or requirement that public employees bear arms or otherwise engage in violence.' "

The Los Angeles Times reports that "with that document stapled to the oath, Kearney-Brown signed it" and was able to return to work.

"The idea that someone could be fired for refusing to sign a loyalty oath came as a surprise to many Californians who were unaware that public employees are still required to sign it," the Times said. "The pledge was added to the state Constitution in 1952 at the height of anti-Communist hysteria and has remained a prerequisite for public employment ever since. All state, city, county, public school, community college and public university employees are required to sign the 86-word oath."

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A state appellate court ruling in California is raising major questions about the rights of parents in that state to home school their children, and that is causing a big stir.

"It is clear to us that enrollment and attendance in a public full-time day school is required by California law for minor children unless (1) the child is enrolled in a private full-time day school and actually attends that private school, (2) the child is tutored by a person holding a valid state teaching credential for the grade being taught, or (3) one of the other few statutory exemptions to compulsory public school attendance applies to the child," says the Feb. 28 decision by the 2nd District California Court of Appeal in In re Rachel L.

The Los Angeles Times says in a story today that the ruling "is sending waves of fear through California's home schooling families."

It says the state currently does little to enforce provisions requiring home-schooling parents to file paperwork establishing themselves as small private schools, hire credentialed tutors, or enroll their children in independent study programs run by public or private schools.

The appellate-court ruling is likely to be appealed to the California Supreme Court, the Times reports.

Update: In a story posted today on Education Week's Web site, my colleague Lesli A. Maxwell reports on how home-schooling families are pushing back against a wave of efforts in several states to more closely regulate home schooling.

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Here's a case to keep an eye on:

The U.S. Court of Appeals for the 2nd Circuit, in New York City, heard arguments yesterday in the case of a Connecticut high school student who contends that she was barred from serving in a student office because of derogatory comments she wrote about school officials on a Web blogging site.

The Associated Press reports on the arguments here, and the Hartford Courant reports here.

Both accounts say the three members of the 2nd Circuit panel seemed especially engaged in the case of Avery Doninger, who wrote disparaging remarks about school officials from her home computer and then was disqualified from running for senior class secretary.

In a controversy over the scheduling of a social event at Lewis S. Mills High School in Burlington, Conn., Doninger wrote an entry in her public blog at livejournal.com that "jamfest is cancelled due to douchebags in central office" and that readers should contact the superintendent "to piss her off more."

In an opinion last August, U.S. District Judge Mark R. Kravitz of New Haven, Conn., ruled against Doninger, saying that even though the teenager's blog remarks were created off campus, they were related to school issues and "the blog itself clearly violates the school policy of civility and cooperative conflict resolution."

The district court's opinion is here.

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A school administrator's alleged statement to a black teacher that "white people teach black kids ... better than someone from their own race" was direct evidence of race discrimination, a federal appeals court has ruled.

A three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, unanimously revived the race-bias lawsuit of the teacher, Mary King, against the Columbia, Mo., district and Russell Hardesty, an administrator in the district.

King alleges that while she worked in a substitute teaching job in the district, Hardesty made several racially derogatory comments, including the comment that white teachers were better at teaching African-American students. She contends she lost her substitute teaching job and assignments as a teacher of homebound students after complaining about the administrator's conduct.

According to court papers, Hardesty denies making any of the discriminatory statements alleged in King's suit. Because the appeals court was reviewing a federal district court's summary judgment in favor of the defendants, it viewed the evidence in the light most favorable to King.

Hardesty's alleged comment about white people teaching black students better "revealed a decidedly negative attitude toward African-American people on the part of a person responsible for the employment decision," the appeals panel said in its Feb. 29 opinion.

The case of King v. Hardesty now returns to the district court for further proceedings.

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