July 2008 Archives

Teachers with "unsubstantiated" allegations of sexual misconduct in their personnel files deserve privacy protection, Washington state's highest court ruled today.

The court ruled 6-3 against arguments by The Seattle Times newspaper that regardless of the outcome of a school district's investigation, the names of teachers alleged to have committed sexual misconduct are of legitimate public concern.

"We hold that the public lacks a legitimate interest in the identities of teachers who are the subjects of unsubstantiated allegations of sexual misconduct because the teachers’ identities do not aid in effective government oversight by the public and the teachers’ right to privacy does not depend on the quality of the school districts’ investigations," said the majority opinion in Bellevue John Does 1-11 v. Bellevue School District.

The newspaper in 2002 filed requests under Washington state's public-records law with three school districts, seeking copies of records relating to allegations of teacher sexual misconduct over the previous 10 years. A number of teachers who had allegations of sexual misconduct in their records but were not criminally charged or disciplined sued to prevent the records' release.

At issue before the state high court were the records of 15 "John Does" from the Bellevue, Federal Way, and Seattle school districts.

"In essence, disclosure of the identities of teachers who are the subject of unsubstantiated allegations serves no interest other than gossip and sensation," said the opinion signed by five of the six justices who concurred in the outcome of the case.

The dissenting opinion cited a 2004 U.S. Department of Education study that suggested 9.6 percent of all children in grades 8-11 suffer educator sexual misconduct. (The dissent didn't mention that the Education Department released the report with "reservations" about the author's scope, as Education Week reported here.)

The dissenters said that because some school districts do not adequately investigate some allegations, some misconduct is recorded as unsubstantiated.

"As a consequence, predatory teachers may go undetected and unpunished," the dissent said. "But the most unfortunate consequence, and one that is completely unacceptable, is that if predatory teachers are undetected, children will continue to suffer at their hands."

The Associated Press reports here. The Seattle Times reports here.

Edweek.org has a special page called "A Lingering Shame," which is a collection of stories the AP did on teacher sexual abuse, as well as links to an award-winning series the Education Week published on the topic both in 1998 and 2003 called "A Trust Betrayed."

Posted by Mark Walsh at 4:49 PM | Permalink | 14 Comments | TrackBacks (0)

A federal judge has ruled that a Florida school district must permit a gay-straight allliance club to meet on a high school campus, rejecting the district's arguments that allowing such a club would be contrary to its abstinence-only sex education program.

The July 29 ruling by U.S. District Judge K. Michael Moore of Miami is the latest in a line of decisions in the federal courts that have generally required schools to treat GSAs on equal terms with other non-curricular student clubs. The judge said the case involving a proposed GSA at Okeechobee High School in the Okeechobee County school district was governed by the federal Equal Access Act.

That law bars federally funded secondary schools from denying equal access to student non-curricular clubs on the basis of religious, political, philosophical, or other content of the club members' speech.

The Okeechobee district argued that recognizing a gay-straight alliance would compromise its abstinence-only program, which is promoted both by the federal government and the state of Florida to teach that abstinence from sex promotes monogamous relationships in the context of marriage.

Judge Moore said the district "has not clarified how dialogue promoting tolerance towards non-homosexual individuals is antithetical to principles of abstinence."

The judge indicated that the school district's concern about the "premature sexualization" of adolescents was legitimate, but he doubted that the GSA was intended to promote that. The district could take steps to ensure that the club avoided sex education topics "reserved for instruction by qualified teachers in a classroom environment."

Judge Moore cited three other federal district court rulings under the Equal Access Act that have upheld the right of students to form gay-straight alliances. But he noted one contrary ruling in which a federal court in Texas denied recognition of a gay student group because Texas law criminally penalized homosexual acts between minors and the group's Web site had links to lewd and obscene content. The judge in that 2004 Texas case, Caudillo v. Lubbock Independent School District, cited language in the Equal Access Act that allows school officials to "protect the well-being of students."

The American Civil Liberties Union, which backed the lawsuit by students seeking to form the gay-straight alliance, issued this press release on the decision.

The Associated Press reports here.

Posted by Mark Walsh at 5:52 PM | Permalink | 1 Comment | TrackBacks (0)

A mix of news from the courtroom, screen, and stage:

School Speech on Gay Issues: A federal judge has issued his written opinion in a case I blogged about in which the judge in May ordered a Florida school district to cease prohibiting students from displaying pro-gay messages.
The written ruling by U.S. District Judge Richard Smoak of Panama City, Fla., is here. The judge said the principal of Ponce De Leon High School was entitled to his opinion that homosexuality is wrong, but where the principal "went wrong was when he endeavored to silence the opinions of his dissenters."
The American Civil Liberties Union, which defended a student who wanted to wear messages such as "I support my gay friends," has this press release on the judge's ruling.

Brown v. Board of Education in the Arts: It's not often that the School Law Blog gets to link to Variety, but the Hollywood trade magazine has this story about the planning stages for a film to be called "The Crusaders." It's about the lawyers at the NAACP Legal Defense and Educational Fund who pressed the Brown case. It is based on Crusaders in the Courts, a memoir by Jack Greenberg, who as a young law school graduate worked with the LDF on the desegregation cases. Tobey Maguire is to play Greenberg in the film, according to Variety.
This news comes as the actor Laurence Fishburne continues playing Thurgood Marshall, the late Supreme Court justice and the architect of the Brown v. Board of Education and its companion cases, in the Broadway play "Thurgood." The show, which received mixed reviews, has been extended until Aug. 17 at the Booth Theater.
Many of you may remember "Separate But Equal," the 1991 ABC television miniseries that told the story of Brown, with Sidney Poitier as Thurgood Marshall and Burt Lancaster as John W. Davis, the lead advocate for the states seeking to maintain legally segregated schools.

Aid to Christian Colleges in Colorado: I was too wrapped up in deadlines the other day to give this decision the attention it deserved. The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled in Colorado Christian University v. Weaver that Colorado could not deny scholarship aid to otherwise qualified students who attended a college that the state deemed "pervasively sectarian."
The Denver Post reported on the ruling here.

Posted by Mark Walsh at 3:37 PM | Permalink | No Comments | TrackBacks (0)

A federal appeals court has upheld a Florida law that requires students to have parental permission to opt out of daily recitations of the Pledge of Allegiance in schools.

"We conclude that the state’s interest in recognizing and protecting the rights of parents on some educational issues is sufficient to justify the restriction of some students’ freedom of speech," a unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, said in Frazier v. Winn.

An 11th grader in Palm Beach County, Fla., challenged the statute as unconstitutional on its face. A federal district court ruled for the student, but in its July 23 decision, the 11th Circuit court upheld the parental-permission requirement.

The court said it saw Florida's law as a "parental-rights statute" that could be distinguished from the flag salute and Pledge-recitation requirement struck down by the U.S. Supreme Court in the 1943 case West Virginia State Board of Education v. Barnette .

"Here, unlike in Barnette and in the cases cited by plaintiff, the refusal of students to participate in the Pledge—unless their parents consent—hinders their parents’ fundamental right to control their children’s upbringing," the court said.

The court did strike down a provision of the Florida law that it interpreted as requiring all students to stand during the Pledge, even those who had their parents' consent not to join the recitation.

"The 'standing at attention' provision should not be enforced," the court said. "But we conclude that this portion of the statute may be severed, leaving the statute otherwise enforceable."

Posted by Mark Walsh at 12:26 AM | Permalink | 1 Comment | TrackBacks (0)

And that may have implications for prayers at school board meetings, in my view.

A three-judge panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., upheld a policy requiring that prayers delivered at the beginning of meetings of the Fredericksburg, Va., city council be nondenominational.

Retired U.S. Supreme Court Justice Sandra Day O'Connor served on the panel by designation, and she wrote the opinion for a unanimous court.

"The restriction that prayers be nonsectarian in nature is designed to make the prayers accessible to people who come from a variety of backgrounds, not to exclude or disparage a particular faith," Justice O'Connor said in Turner v. City Council of Fredericksburg. "The council’s decision to open its legislative meetings with nondenominational prayers does not violate the Establishment Clause."

The city council allowed only its own members to take turns delivering the prayers, not any outside ministers or community members. The prayer policy was challenged by a city council member who is also a Baptist minister and wished to close his prayers in the name of Jesus Christ.

Justice O'Connor treated prayers at a city council meeting as akin to the legislative prayers upheld by the Supreme Court in 1983 in Marsh v. Chambers.

I know this case has potential significance for school boards because I have attended school board meetings across the nation that have included prayers, including those delivered by board members and those offered by guest clergy members or others from the community.

The significant legal question is whether prayers at school board meetings are "legislative prayer" of the type upheld in Marsh and the city council case, or whether board meetings are more like school. If courts consider board meetings akin to a school event, that raises some of the First Amendment concerns about compelling students to hear prayers, as in the graduation prayers struck down in Lee v. Weisman.

The high court has never specifically addressed the constitutionality of prayers at school board meetings.

In 1999, the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, in Coles v. Cleveland Board of Education, held that school board meetings were more like school, because of the frequent presence of students and other factors, and that prayers at such sessions were an unconstitutional government establishment of religion.

Meanwhile, in Tangipahoa Parish, La., a lawsuit challenging that school system's latest policy permitting local ministers to deliver school board prayers is being challenged in U.S. District Court. The ACLU of Louisiana has this press release and this amended complaint from February. The Alliance Defense Fund, which is helping defend the school system, has this press release and this document answering the suit.

In an earlier version of the suit against the Tangipahoa Parish school board, which was eventually tossed out on an issue of legal standing, a panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, issued this 2006 opinion, that discusses at length some of the legal issues surrounding school board prayers. But I assume the current lawsuit will eventually get back to the 5th Circuit.

Posted by Mark Walsh at 6:30 PM | Permalink | No Comments | TrackBacks (0)

A federal appeals court today struck down a federal law aimed at protecting children from Internet pornography by imposing criminal penalties on commercial Web publishers who fail to restrict access to sexually explicit sites.

A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled unanimously in American Civil Liberties Union v. Mukasey that the Child Online Protection Act violates the First and Fifth Amendments on its face.

The law, enacted in 1998 after the U.S. Supreme Court struck down a broader effort by Congress to protect children from sexually explicit content on the Web, requires commercial Web sites to use age-verification technologies to restrict minors from accessing such materials.

The Supreme Court has addressed COPA in two preliminary cases, Ashcroft v. ACLU and Ashcroft v. ACLU II, which Education Week reported on here and here.

Today's Third Circuit ruling affirms a federal district court that struck down the law after a full trial.

"We are quite certain that notwithstanding Congress’s laudable purpose in enacting COPA, the Government has not met its burden of showing that it is narrowly tailored so as to
survive a strict scrutiny analysis and thereby permit us to hold it to be constitutional," the appeals court said. It said that the government's promotion of content-filtering software would be a less-restrictive alternative that COPA.

Meanwhile, COPA should not be confused with the Children's Internet Protection Act, or CIPA, a similar law that has more direct bearing on schools' efforts to protect children from inappropriate Web content.

CIPA requires recipients of federal technology funds, such as E-rate discounts for telecommunications, to adopt Internet-safety policies that include the installation of filtering software to block out obscenity, child pornography, and other material that is "harmful to minors."

In 2003, in United States v. American Library Association, the Supreme Court upheld CIPA in a challenge to its application to public libraries that receive federal technology funds. Education Week reported on that ruling here.

Posted by Mark Walsh at 2:54 PM | Permalink | 1 Comment | TrackBacks (0)

A strip search of an 8th grader by school authorities looking for Ibuprofen pills violated the student's rights under the Fourth Amendment, a federal appeals court has ruled.

In a significant decision in a closely watched case on students' rights and administrators' liability, the U.S. Court of Appeals for the 9th Circuit ruled 8-3 on July 11 that officials at an Arizona middle school "acted contrary to all reason and common sense as they trampled over" the privacy interests of student Savana Redding.

However, the "en banc" 11th Circuit panel split 6-5 in holding that the assistant principal who ordered the strip search was not entitled to qualified immunity from liability in the student's lawsuit.

Redding was searched in 2003 as part of an investigation into the possession of over-the-counter medications by students at the school in violation of school rules. 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 right against unreasonable searches.

In the majority opinion in Redding v. Safford Unified School District, U.S. Circuit Judge Kim McLane Wardlaw said the strip search was "excessively intrusive," especially considering that school officials were relying on an uncorroborated tip from another student who had been caught in possession of the pills.

Wardlaw further said that it should have been clear to the school officials under the U.S. Supreme Court's 1985 decision in New Jersey v. T.L.O. that the strip search was unreasonable, and thus an assistant principal who ordered the search did not merit qualified immunity.

In T.L.O., the Supreme Court upheld the search of a student's purse for contraband and held that school searches are justified by a "reasonable suspicion" that laws or school rules were violated. Under the ruling, schools must show that a search was reasonable at its inception and was reasonable in scope.

"The guidance provided by T.L.O. should have been clear to the school officials, who undertook the professional obligation to balance properly the order of the school with the individual liberties of the students who enter the school," Judge Wardlaw said.

Two judges on the panel said they agreed the search was unconstitutional, but because the case law was unclear, the administrator deserved immunity.

Writing in a dissent joined by two other judges, U.S. Circuit Judge Michael Daly Hawkins said he would uphold the strip search because school officials had reason to suspect Redding possessed the Ibuprofen pills and that they were acting in good faith to avoid a potential health threat to students.

Judge Hawkins said the denial of qualified immunity to the assistant principal may have "the greatest impact on this circuit's schools."

"It is now clear that school officials who conduct T.L.O. searches that judges later think unreasonable will face trial and the possibility of damages, without any case law to guide them and no means of divining our views of 'common sense and reason,'" Judge Hawkins said.

The American Civil Liberties Union, which helped represent the student in the case, has this press release about Friday's decision.

The Los Angeles Times reported on the decision here.

I blogged here about the 9th Circuit's decision in January to rehear the case.

Posted by Mark Walsh at 4:12 PM | Permalink | 1 Comment | TrackBacks (0)

I probably should have noted this sooner, but I am on vacation this week.

However, Education Week just posted my final U.S. Supreme Court story of the term that ended late last month. Embedded in the Web page of the story is a review of cases of interest to educators in the 2008-09 term.

I'll be back to the blog next week.

Posted by Mark Walsh at 1:50 AM | Permalink | 1 Comment | TrackBacks (0)

A federal appeals court ruled today that authorities violated the rights of members of an anti-abortion group by ordering them to stop driving a truck displaying large, graphic images of aborted fetuses around a California middle school.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled unanimously in Center for Bio-Ethical Reform v. Los Angeles County Sheriff Department that a California statute that bars disruption on or near school grounds could not be applied under the First Amendment to efforts by the anti-abortion group to drive its truck around Dodson Middle School in Rancho Palos Verdes, Calif.

The suit stems from a March 24, 2003, incident when the group's truck targeted the middle school just as students were arriving for the day. According to the court papers, some students were upset by the graphic images of fetuses, a group of boys threatened to throw rocks at the truck, and other students talked about it in class.

School officials called the Los Angeles County sheriff's department, which dispatched several officers. According to the court documents, Art Roberts, the deputy principal of Dodson Middle, joined the officers in telling the anti-abortion group members that they would have to leave the area adjoining the school. They cited the the state law against disruptions near campuses.

Roberts was named as a defendant, along with several sheriff's deputies, in the anti-abortion group's suit.

A federal district court dismissed the suit, but in the July 2 ruling, the 9th Circuit court revived it. The court said that because the government officials restricted the group's speech based on the targeted listener's reaction to it, that amounted to allowing a "heckler's veto" in violation of the First Amendment.

"Children may well be particularly susceptible to distraction or emotion in the face of controversial speech, and may not always be expected to react responsibly," the court said. "There is, however, no precedent for a 'minors' exception to the prohibition on banning speech because of listeners’ reaction to its content. It would therefore be an unprecedented departure from bedrock First Amendment principles to allow the government to restrict speech based on listener reaction simply because the listeners are children."

The court held that because of uncertainty in applying the state statute to this situation, the assisant principal and the sheriff's deputies were entitled to qualified immunity from any personal liability in the case. But it ordered the district to reconsider the Center for Bio-Ethical Reform's request for injunctive relief. (Warning: The group's Web site opens with a graphic abortion video.)

(Thanks to How Appealing for the tip on this decision.)

Posted by Mark Walsh at 4:12 PM | Permalink | 2 Comments | TrackBacks (0)

Maine's highest court has ruled that towns may not provide a subsidy to parents who pay tuition to send their children to private religious schools.

Meanwhile, Arizona's highest court has issued an order permitting two state voucher programs that cover private religious schools to continue, but the state legislature has declined to provide any funding for the programs next year.

In the Maine case, the state's Supreme Judicial Court ruled unanimously on July 1 in Joyce v. State of Maine that a state law that prohibits the use of public funds to directly pay tuition at private religious schools also covers indirect subsidies to parents who choose religious schools for their children.

The law concerns the state's "tuitioning" program, in which towns without their own high schools pay to send children to public schools in other districts or to non-religious private schools.

The case arose over a family in the town of Swan's Island, Maine, that was receiving a monthly subsidy from the town equal to the amount it was spending on tuition at a Christian school.

The state high court noted that the Maine legislature reaffirmed state policy against providing public support for tuition at religious schools after the U.S. Supreme Court ruled in 2002 in Zelman v. Simmons-Harris that such aid does not necessarily violate the First Amendment's prohibition against government establishment of religion.

"The subsidy is simply a straw man for tuition payments by the town to the [family's] sectarian school," the Maine court said.

In Arizona, the state supreme court on June 27 issued an order allowing two voucher programs that allow state aid to be used at private religious schools for children with disabilities and those in foster care to continue in the 2008-09 school year. A state appeals court struck down the program in May, which I blogged about here.

The state high court's order appears to be a form of stay while it considers the legal merits. (I couldn't find the supreme court's order on its Web site.)

The Arizona Republic reports here that on the same day the state high court issued its order, the state legislature stripped the program of any funding for next year.

Posted by Mark Walsh at 12:28 PM | Permalink | No Comments | TrackBacks (0)

A Wisconsin appeals court has ruled that public school teachers in Milwaukee may display signs calling for a new union contract in their classrooms.

The city school system had sought to bar teachers from displaying signs that read "Attract and Retain With a Fair Contract NOW!" and "Do the Right Thing." The signs represented political advocacy that was barred by district policy from school buildings, the system argued.

But the state Court of Appeals affirmed a ruling by the Wisconsin Employment Relations Commission that the signs were permitted under state law because they related to ongoing collective-bargaining activities.

In a July 1 ruling in Milwaukee Board of School Directors v. WERC , a three-judge panel of the court was unanimous in agreeing with the commission that "these signs would not provoke any more questioning or distraction than the teacher’s other personal postings, which are specifically permitted by the Board. A teacher’s posting of a Chicago Bears poster for instance, is much more likely to provoke a response from a devoted Packer fan than a sign stating 'Do the Right Thing.'"

The Associated Press reports on the ruling here.

This is clearly grounded in Wisconsin law. I'd be curious about whether other states' labor laws and rulings permit teachers to display collective-bargaining signs in their classrooms.

Posted by Mark Walsh at 3:52 PM | Permalink | 1 Comment | TrackBacks (0)