The School Law Blog

A federal appeals court has ruled that a student's off-campus blog remarks created a "foreseeable risk of substantial disruption" at her high school and thus she was not entitled to a preliminary injunction reversing her discipline.

A suit filed on behalf of Avery Doninger alleged that she was barred from serving in a student office because of derogatory comments she wrote about school officials on a Web blogging site.

In a controversy over the scheduling of a social event at Lewis S. Mills High School in Burlington, Conn., Doninger wrote in an entry in her public blog at the site 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, a federal district judge 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."

In its May 29 decision in Doninger v. Niehoff, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, unanimously upheld the district judge's denial of the injunction.

"The blog posting directly pertained to events at LMHS, and Avery’s intent in writing it was specifically to encourage her fellow students to read and respond," the court's opinion says.

The court said its findings rested in part on the fact that Avery's discipline involved a disqualification from running for a class office. Had the school imposed "a more serious consequence" on the student, there would have been other constitutional considerations, the court said.

I blogged about this case back in March when it was argued before the 2nd Circuit.

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A federal appeals court has revived the disability-discrimination lawsuit of an employee in the U.S. Department of Education's office for civil rights.

Robert Pinkerton was dismissed in 2002 as an equal-opportunity specialist in the Dallas regional office of the department's civil-rights branch for what court papers describe as "unacceptable performance." Pinkerton, who has physical disabilities, sued the Education Department under the Rehabilitation Act of 1973 alleging discrimination and retaliation. A jury sided with the department in the case.

On appeal, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, ruled unanimously on May 27 in Pinkerton v. Spellings that the district court should have applied a less-stringent standard of "causation" in the case, and that the worker need only show that his disabilities were a motivating factor in his dismissal and not the sole reason.

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The U.S. Department of Justice is urging the Supreme Court not to take up an appeal stemming from a lawsuit that contends that a state teachers' exam has a disparate impact on black and Latino test-takers in the New York City school system.

As I reported in Education Week here, a group of black and Latino teachers in New York City sued New York state and the New York City school system in 1996. The plaintiffs alleged that two tests used by the state had a racially disparate impact on African-American and Latino test-takers, and that those in the city system who failed to pass the test were demoted to substitute-teacher status, for which they were received less pay and reduced benefits.

A panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, partially revived the lawsuit in a 2006 decision, ordering a federal district court to reconsider whether the New York City school system was potentially liable for the disparate impact of the state's teacher test under Title VII of the federal Civil Rights Act of 1964.

The New York City school system appealed that ruling to the Supreme Court, which asked for the federal government's views.

In a brief filed just before the Memorial Day weekend, U.S. Solicitor General Paul D. Clement said the 2nd Circuit court was incorrect in ruling that the school district may be liable under Title VII for the disparate impact of the state's licensing test.

But, the brief said, the case was a poor vehicle for deciding the issue because the 2nd Circuit opinion does not conflict with any other federal appeals courts on that issue and because there has been no final ruling from the district court.

(Thanks to SCOTUSblog for the tip and the link to the solicitor general's brief.)

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A federal appeals court has revived a Chicago teacher's claim that her transfer from a full-time position as a bilingual teacher was in violation of the federal Age Discrimination in Employment Act.

A three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled unanimously that Valerie T. Filar, who was 69 in 1999 when she was moved to a full-time substitute's position, should have a chance to prove her age-discrimination claim in a trial court.

"Because the only salient difference between Filar and the younger teachers was age, a jury
could conclude that age motivated [the principal's] decisions" to keep a 42-year-old and 39-year-old teacher in full-time positions instead of Filar, the court said in its May 22 decision in Filar v. Board of Education of the City of Chicago.

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Zelma Henderson, the last surviving plaintiff of the Brown v. Board of Education desegregation lawsuit against the Topeka school system, has died at age 88 after a fight against pancreatic cancer, according to news reports.

The Topeka Capital-Journal reports here, and the Associated Press reports here.

The Topeka paper reports that Henderson grew up in Oakley, Kan., "where she attended school and socialized with whites. She resented the segregation she encountered after moving to Topeka in the 1940s."

Her children, Donald, 6, and Vicki, 4, attended classes at the all-black McKinley Elementary School in Topeka at the time the lawsuit was filed, the paper reports.

"The school was about 10 blocks farther away than the white Quincy Elementary," it said.

Henderson was one of 13 plaintiffs in the Topeka case, all of whom were women except for Oliver Brown, whose name would become synonymous with the landmark 1954 U.S. Supreme Court decision in Brown v. Board of Education, which declared that separate schools for black and white students were inherently unequal.

The Topeka Capital-Journal also reports that Henderson helped provide inspiration to the Brown Foundation for Educational Equity, Excellence and Research, founded by Oliver Brown's daughters, in the push to save one formerly all-black school and turn it into a national historic site and museum.

That school, Monroe Elementary, was dedicated by President Bush in 2004 as the Brown v. Board of Education National Historic Site. Education Week reported on the effort to transform the school into a museum here, and on the dedication here.

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I have just received word about the annual School Law Institute that is held in the summer at Teachers College, Columbia University in New York City.

The institute is July 14-18, and is aimed at lawyers, administrators, teachers, policy analysts, journalists, and anyone else with an interest in education law. Among the issues to be addressed are: school safety, equity, special education, student and teacher free speech, and religion in the public schools.

The faculty includes Jay P. Heubert of Teachers College and Columbia Law School; Gary Orfield, the renowned desegregation expert and a professor at the UCLA Graduate School of Education; Michael A. Rebell, the executive director of the Campaign for Education Equity and a professor at Teachers College; Maree Sneed of Hogan & Hartson in Washington, and Perry A. Zirkel, a professor of education and law at Lehigh University.

The institute brochure is here. Note that it isn't free: tuition runs $1,030 for credit or $1,585 for non-credit, and you're on your own for accommodations.

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A federal appeals court has ruled that a child welfare caseworker violated the Fourth Amendment when she conducted "strip searches" of two students at a private school without a warrant or the consent of parents or school officials.

A three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled unanimously that the caseworker did not merit qualified immunity in a lawsuit over the search because it was clearly established in the circuit about when such searches by child-welfare workers could be carried out at private schools.

"Today we reiterate ... that it is a violation of a child’s constitutional rights to conduct a search of a child at a private school without a warrant or probable cause, consent, or exigent circumstances," said the court's May 19 opinion in Michael C. v. Gresbach.

The search in question came about after a report to the Bureau of Milwaukee Child Welfare that 8- and 9-year-old siblings had been subjected to physical abuse by a family member, according to court documents. The caseworker went to the children's private school to interview the children, telling the school's principal she should not seek consent or notify the children's parents. During the interview, the caseworker asked the children to lift or lower some of their clothing so their arms, legs, and backs could be inspected for signs of abuse. No evidence of abuse was found, and the child abuse case was later closed.

The children's parents and stepparents sued the caseworker and two other agency officials, claiming that the search violated the children's Fourth Amendment right to be free from unreasonable searches.

The 7th Circuit panel said it has been clear since a 2003 ruling by the appeals court in Doe v. Heck that a private school and its students had a reasonable expectation of privacy and thus a child-welfare caseworker's search and seizure of a child without a warrent or parental consent was "presumptively unreasonable."

Thus, the caseworker in the current case did not have immunity from the suit, the court said.

The parents were represented by Liberty Counsel, an advocacy group that issued this press release on the case.

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The U.S. Supreme Court today ruled 7-2 that states may continue to exempt from state income taxes interest on municipal bonds issued within the state, while taxing interest on out-of-state bonds.

Since the decision in Department of Revenue of Kentucky v. Davis (Case No. 06-666) was the one the municipal bond industry was hoping for and expecting, the whole industry breathed a sigh of relief. Experts had said a ruling the other way might have destabilized the market for muni bonds, which are vital to school districts and other local government agencies.

Bloomberg News reports here, and the Associated Press reports here.

In another decision on Monday, the justices upheld a federal law that deals with pandering or solicitation of child pornography.

In United States v. Williams (No. 06-694), the court ruled 7-2 that a 2003 law that was Congress' latest effort to combat child pornography was not unconstitionally overbroad or too vague. The AP reports here.

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The U.S. Supreme Court today declined to hear the appeal of a Texas school superintendent who was denied immunity in a case in which a teacher lost out on a promotion in the district because her children attended private school.

The justices declined without comment to hear the appeal in Smith v. Barrow (Case No. 07-1089).

The case stemmed from a lawsuit brought against the Greenville, Texas, school district and Superintendent Herman Smith by Karen Jo Barrow, a teacher who claimed she was denied a promotion to assistant principal because she refused to transfer her children from private school to the district's schools.

A jury found that Barrow's parental rights were violated, and awarded her some $15,000 in compensatory damages and $20,000 in punitive damages against the superintendent.

Smith, who had lost on the issue of qualified immunity in an earlier stage of the case, appealed again. In an Oct. 23, 2007, opinion, a panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, reiterated its earlier ruling that the law was clearly established that public school employees have a constitutional right to send their children to private schools. The earlier ruling, from 2003, is here.

The appeals court also upheld some $650,000 in attorneys' fees and costs that the federal district court awarded to Barrow.

In his appeal to the Supreme Court, Smith defended the notion that a school district should be able to require its employees to enroll their children in the district's schools.

"Just as it should come as no surprise that General Motors might not be pleased if its CEO bought a Ford, it should come as no surprise that a patronage requirement for public school administrators might be considered appropriate," the superintendent's brief said.

The Texas Association of School Boards had filed a friend-of-the-court brief on the superintendent's side, urging the high court to accept the case the determine the proper level of scrutiny that should be applied to parental-rights claims.

Barrow had appealed a separate 5th Circuit court ruling in the case (the second of three, with the first and third being mentioned above), that had affirmed a summary judgment in favor of the school district in the case. The parent appealed that ruling to the Supreme Court, which denied review last October in Barrow v. Greenville Independent School District (No. 07-59).

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An Arizona state appeals court today struck down two state laws authorizing private school voucher programs for children with disabilities and those in foster care.

A three-judge panel of the Arizona Court of Appeals in Tucson ruled unanimously that the programs violate a provision of the state constitution prohibiting taxpayer aid to any church or "private or sectarian school."

"Our legislature apparently intended to foreclose the argument that the school voucher programs give unconstitutional aid to private schools by including statutory language ... stating that the public funds are a 'grant of aid to a qualifying pupil through the qualifying pupil’s respective custodian and not to the grant school in which the qualifying pupil is enrolled,'" the court said in Cain v. Horne.

Under the programs, state aid is sent to participating private schools in the form of checks that must be endorsed over to the schools by the parents or guardians who choose the school for their children. Education Week reported on the enactment of the measures here.

"Even if the mechanism for disbursing tuition payments were more circuitous, it would still transfer state-appropriated funds to private schools," the court said.

The coalition that challenged the laws, which includes the Arizona School Boards Association and the Arizona Education Association, has this press release about the ruling.

The laws were defended by Arizona Superintendent of Public Instruction Tom Horne. There was no immediate reaction to the ruling on his Web site.

The Arizona Republic has this brief story suggesting that the ruling will be appealed to the Arizona Supreme Court.

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Connecticut Attorney General Richard Blumenthal has filed an appeal of the state's case challenging the federal No Child Left Behind Act as imposing unfunded mandates on states and schools.

Late last month, a federal district judge in Connecticut issued an opinion in Connecticut v. Spellings dismissing the remaining claims in the state's suit. I reported on that in the blog here, and in an Edweek story here.

The Connecticut attorney general's office has this press release on the appeal, and the Hartford Courant has this story. The attorney general's press office says the filings are along the lines of a notice of appeal to the U.S. Court of Appeals for the 2nd Circuit, in New York City, and they don't include the state's substantive arguments about the issues in the case. I'll be on the lookout for that when it is filed.

Thanks to How Appealing for the tip.

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The Indiana Supreme Court has thrown out a finding of child delinquency for a middle school student who posted a vulgarity-laced tirade against her principal on MySpace.

A student identified in court papers as A.B. was charged with harassment for the messages aimed at Shawn Gobert, her principal at Greencastle Middle School in Greencastle, Ind., including one that said "die ... Gobert ... die." In an apparent dispute over body piercings during the 2005-06 school year, the student contributed one vulgar tirade to a MySpace page that was purportedly the principal's, but had been set up by another student, according to court papers. And A.B. herself created a MySpace "group" with a vulgar title that included the principal's name.

While a state trial court found A.B. delinquent on several harassment charges, a state appeals court reversed, ruling that the student's speech was protected by the First Amendment.

In a May 13 decision, the Indiana Supreme Court also ruled for the student, but on different grounds. In a unanimous opinion, the court said the student's message on the fake principal's page was not truly directed at Gobert because he was not among the MySpace subscribers authorized to view it.

As for the vulgar MySpace group created by A.B., the court said that the group page was accessible to the general public, and there was a reasonable expectation that it would come to the principal's attention. But under Indiana's harassment statute, a person breaks the law only by communicating a message with "the intent to harass, annoy, or alarm another person but with no intent of legitimate communication."

"The content of the posting presents strong evidence that A.B. intended her 'group' page as legitimate communication of her anger and criticism of the disciplinary action of Mr. Gobert and the Greencastle Middle School against her friend, the creator of the private 'profile,' " the court said. "We also observe that it is even more plausible that A.B., then 14 years old, merely intended to amuse and gain approval or notoriety from her friends, and/or to generally vent anger for her personal grievances."

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A federal district judge has ordered a Florida school district to cease prohibiting students from displaying pro-gay slogans and logos.

U.S. District Judge Richard Smoak of Panama City, Fla., issued an oral ruling after a two-day trial in the lawsuit brought by Heather Gillman, a straight student at Ponce de Leon High School who says she was barred from displaying rainbow stickers and phrases such as "Gay Pride" and "I Support My Gay Friends."

The suit, backed by the American Civil Liberties Union of Florida, alleged that the Holmes County school district in Florida's Panhandle prohibited all symbols and slogans related to gay rights, "contending without a reasonable basis that such expression is disruptive to the educational process and indicative of membership in a 'secret society' or 'illegal organization.'"

The judge found that district officials violated Gillman's First Amendment free speech rights, and he permanently enjoined them from "restraining, prohibiting or suppressing the plaintiff or any other student within the Holmes County school district from expressing their support for the respect, equal treatment and fair acceptance of homosexuals," according to a very rough court transcript made available by the ACLU.

"I find that the core message here is that of tolerance and fairness, and that the issue of sexual preference is really not the thrust of the argument," Judge Smoak said.

The judge indicated that a written ruling would be forthcoming within a few weeks.

Gillman's lawsuit is here. An ACLU press release is here.

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A federal appeals court today upheld a school district's mandatory school uniform policy in the face of a multi-pronged First Amendment challenge.

A panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled 2-1 to uphold the uniform policy of the Clark County, Nev., school district, which includes Las Vegas.

"In a case of first impression in this circuit, we ... largely conclude that public school mandatory dress policies survive constitutional scrutiny," said the majority opinion by Judge Michael Daly Hawkins in Jacobs v. Clark County School District.

The case involves a 2003 policy that set a basic dress code for all schools and then allowed individual schools to establish more stringent school uniform policies when parents returned surveys supporting the idea. A typical school uniform policy required khaki pants and solid-color polo shirts or other shirts with no messages except a school logo.

The policy was challenged on behalf of several students, including those who were forbidden from wearing religious messages as well as those who generally objected to having to wear a uniform.

The 9th Circuit majority said the school uniform policies were viewpoint- and content-neutral, and under a standard of intermediate scrutiny under the First Amendment, the policies further government interests such as promoting safety and enhancing the school environment.

The majority also cites with approval the Manual on School Uniforms put out by the U.S. Department of Education in 1996, under President Clinton. That manual appears to be archived on the department's Web site.

Writing in dissent, U.S. Circuit Judge Sidney R. Thomas said the majority had failed to properly apply the U.S. Supreme Court's decision in Tinker v. Des Moines School District, the 1969 case upholding the right of students to wear black armbands to protest the Vietnam War as long as school was not substantially disrupted.

Noting that the uniform policies prohibit "all messages on clothing, except for messages that support the school," Judge Thomas added: "Confining messages to pro-government content cannot be said to be viewpoint- or content-neutral."

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The U.S. Supreme Court declined today to hear the appeal of an Ohio superintendent in a lawsuit brought by a parent who says she faced retaliation for publicly criticizing the school district's treatment of her daughter, who has diabetes.

The court's refusal without comment to hear the appeal in Evans v. Jenkins (Case No. 07-1210) means that the parent's suit will go forward on a First Amendment retaliation claim.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, had ruled unanimously in January to reinstate the First Amendment claim brought by Shara Jenkins against Lloyd Evans, the superintendent of the Rock Hill school district, and the district itself. The court said 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 appeals court upheld the dismissal of certain other claims in the suit.

I blogged about the 6th Circuit ruling here. As I said at the time, 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.

In an appeal of the 6th Circuit decision brought only by the superintendent, lawyers for Evans sought to convince the justices that there was a split among the federal circuit courts over whether a parent's criticism of public school officials must be on a matter of public concern for it to be considered speech protected by the First Amendment.

The Supreme Court's refusal to hear the appeal is not a decision on the merits of any part of the case, but it does mean the parent will be able to pursue the First Amendment claim at the trial court level.

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This almost seems made up, but it's not.

A federal appeals court has upheld the dismissal of a Texas man's lawsuit alleging that a school district wrongly refused to hire him despite his 13 felony convictions.

The applicant, James J. Crook, was a lawyer who was convicted of barratry, which my legal dictionary defines as the crime of instigating groundless judicial proceedings. After losing his license to practice law, Crook got a job as a substitute teacher in the El Paso, Texas, school district, according to court papers. His suit said he applied multiple times for a permanent position as a social studies teacher, based in part on "representations" from an administrator that his felony convictions were not a bar to permanent employment.

After three years of not getting hired, Crook filed a challenge with the federal Equal Opportunity Commission, and later a federal lawsuit alleging various claims, including fraud based on the alleged misrepresentation and a claim that convicted felons should be a protected class under the Civil Rights Act of 1964.

In a unanimous decision by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, the court upheld the school district's policy of barring all felony convicts from teaching positions. The appeals panel agreed with the district court's conclusion that "because teachers are in close proximity to school children on a daily basis, and are charged with the responsibility of representing to their students an example of good moral character, the school board’s policy reflects the legitimate interest of protecting children from both physical harm and corrupt influences."

The court's decision in Crook v. El Paso Independent School District is here.

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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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