October 2008 Archives

This decision is a couple of weeks old but I just came across it, and it is an interesting intersection of state and federal anti-discrimination law.

A state appeals court in California has upheld jury awards of $175,000 and $125,000 to two students who suffered anti-gay harassment from their peers at school. The court said the Poway Unified School District violated the students' rights under a state anti-discrimination law because of its insufficient response to the harassment.

The court also upheld findings that the principal and assistant principal at Poway High School violated one student-plaintiff's federal constitutional right to equal protection under the law, and that the principal violated the other student-plaintiff's equal-protection rights.

The Oct. 10 ruling by a three-judge panel of the 4th District California Court of Appeal in Donovan v. Poway Unified School District was unanimous.

The lawsuit by the two students alleged that they kept logs of anti-gay incidents and harassment by other students over the course of two school years. They repeatedly informed school officials of the incidents, their suit said, but the administrators did not take effective action to stop it. The appeals court agreed with the trial jury that the school system's response was inadequate.

"This is not a case where the harassment was limited to a few isolated incidents of name-calling or is otherwise attributable to mere banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to students subjected to it," the court said.

The court went on to hold that the "actual notice" liability standard developed in cases under Title IX of the Education Amendments of 1972 should apply to the state anti-discrimination statute when it came to school district liability for peer sexual harassment.

The court also upheld an award of $421,000 in attorneys' fees to the plaintiffs' lawyers.

The Lambda Legal Defense and Education Fund, a gay-rights organization, represented the students and has this press release about the decision.

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A couple of quick items for a Friday afternoon:

Disability Guidance: My colleague Christina Samuels has this story in Education Week about informal guidance from the U.S. Department of Education on when it is proper for schools to refer to a student's disability status on report cards and transcripts.

The simple answer is that it is OK under certain circumstances to note a student's disability status on a report card, but it usually isn't OK on a transcript.

The Education Department's office for civil rights issued this "dear colleague" letter, as well as this question-and-answer document.

Desegregation in Tucson: The latest issue of The Integration Report, published by the Civil Rights Project at UCLA, has a detailed discussion of the desegregation efforts in the Tucson, Ariz., school district.

The newsletter is also gathering information about transportation and desegregation, in part to see whether high fuel costs are having any effects on efforts to maintain racial diversity in the schools.

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A couple of interesting decisions from recent weeks on free speech for school employees and students have just crossed my desk.

Employee Speech: A federal appeals court has revived the lawsuit of an Idaho school security specialist who claims he lost his job in retaliation for raising concerns with administrators about school discipline and safety.

A three-juge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled unanimously on Oct. 15 in Posey v. Lake Pend Oreille School District that under a recent U.S. Supreme Court decision on speech by public employees, a legal inquiry into the protected status of speech in a First Amendment retaliation claim presents a mixed question of fact and law. Thus, a district court's summary judgment in favor of the school district was inappropriate in this case.

The case concerns a high school security aide who raised questions about school safety in a letter to district administrators that he had composed on his own time.

The 9th Circuit panel said the case was governed by the Supreme Court's 2006 decision in Garcetti v. Ceballos, which held that when public employees speak pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and their speech is subject to employer discipline.

(Interestingly, the opinion does not acknowledge the debate in the lower courts over whether Garcetti applies with full force to public education. See my blog post about a teacher speech decision which held that it didn't.)

The 9th Circuit panel said there were factual questions about the scope of the school security aide's job duties and whether he wrote his letter pursuant to his official duties.

"Summary judgment is ... inappropriate where, as here, (1) plaintiff has spoken on a matter of public concern, (2) the state lacks an adequate justification for treating the employee differently from any other member of the general public, and (3) there is a genuine and material dispute as to the scope and content of plaintiff’s employment duties," the court said in sending the case back to the district court for further proceedings.

Student Speech: A federal district judge has upheld a Pennsylvania school district's restrictions on student speech perceived as promoting violence, ruling against a student who sought to wear a T-shirt promoting "terrorist hunting."

This decision from late last month was featured in a story last week in The Wall Street Journal. (A subscription may be required.)

The case concerned a T-shirt worn to school by Donald Miller III, a 9th grade student at Penn Manor High School in Millersville, Pa. The shirt depicted a handgun and the phrase "Volunteer Homeland Security" on the front and such phrases as "United States Terrorist Hunting Permit" and "Gun Owner-No Bag Limit" on the back, suggesting permission to hunt and kill terrorists.

School officials barred the shirt as a violation of the district's policy against student expression that incites violences or advocates the use of force or violations of law.

In a Sept. 30 decision in Miller v. Penn Manor School District, U.S. District Judge James Knoll Gardner of Allentown, Pa., sided with the school district.

"The language on Donald’s T-shirt advocates the use of force, violence and violation of law in the form of illegal vigilante behavior and the hunting and killing of human beings," the judge said. "There is no 'Volunteer Homeland Security' in this country. The message of the T-shirt implies that Donald is licensed to hunt and kill terrorists (i.e. other human beings) with no 'bag limit.' "

The judge did rule that the family was likely to succeed in its arguments that the school district's since-amended student speech policy prohibiting anything that was a "distraction to the educational environment" was unconstitutionally vague and overbroad.

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A federal district judge has ruled that a New York City school system rule barring teachers from wearing campaign buttons in school is likely constitutional.

In an Oct. 17 opinion, Judge Lewis A. Kaplan of U.S. District Court in Manhattan rejected a request by the United Federation of Teachers for a preliminary injunction that would bar enforcement of the "chancellor's regulation" against wearing political buttons.

"While a majority of students, particularly older students, presumably would understand that the views expressed by their teachers’ campaign buttons are personal rather than institutional," Judge Kaplan said, "there is a clear relationship between the regulation and defendants’ legitimate interests in ... avoiding the entanglement of their public educational mission with partisan politics."

The UFT had sued the New York City school system on Oct. 10, seeking to block the regulation that requires teachers and staff members to maintain "complete neutrality with respect to all candidates" while on duty or in contact with students. The school district had reiterated the rule in September, after the teachers' union had sent its members a message urging button-wearing and other political activity.

Education Week reported on the issue here.

On another issue in the union's lawsuit, Judge Kaplan agreed to issue an injunction barring the school system from enforcing its rules against the distribution or posting of political materials in staff mailboxes or on union bulletin boards in schools. The judge said the school district failed to justify its rules in those instances, which involve political communications that would generally be out of the view of students.

UFT President Randi Weingarten says in this statement that the union will decide after Election Day whether to pursue the case further.

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The U.S. Supreme Court today refused to hear the appeal of a Minnesota family in a case about the burden of proof in legal disputes over special education.

The appeal in M.M. v. Special School District No. 1, Minneapolis, comes from the parent of a child with multiple disabilities who ended up in administrative proceedings over the child's services under the federal Individuals with Disabilities Education Act.

At issue is whether the parent or the state of Minnesota would have the burden of proof in the proceedings. In a 2005 opinion known as Schafferv. Weast, the Supreme Court held that where state law was silent on the issue, the burden of persuasion in special education cases lies with the party who brought the case. That is typically the parents, so the Schaffer decision was considered a victory for school districts.

But the justices stopped short of deciding which rule would apply in states that assign the burden of proof in such proceedings by law, such as Minnesota, which places the burden on school districts in most instances.

In M.M.'s case, a panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled in February that notwithstanding the Minnesota law, the burden of proof in the case should be on the moving party, which was the family.

In its Supreme Court appeal, the family said the 8th Circuit court was wrong to disregard that Minnesota has legislatively assigned the burden of proof to school districts. They were joined in a friend-of-the-court brief by the state of Minnesota and a brief by the Minnesota Disability Law Center.

The Minneapolis district filed a brief that urged the justices not to take up the case because there was not yet a split among the federal appeals courts on the issue.

After considering the appeal at several of their private conferences, the justices on Oct. 20 denied the appeal without comment.

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The following story appears in the next edition of Education Week. It is based on an Oct. 15 forum sponsored by the American Enterprise Institute and the Thomas B. Fordham Institute. The conference lineup and draft papers are available here.

Scholars Weigh Court Influence Over School Practices, Climate

By Mark Walsh
Washington

The courts play a big part in many aspects of public education in the United States, but it wasn’t always that way. And was the situation inevitable?

That was one question that a group of legal scholars, education policy experts, and a few practitioners sought to answer last week at a conference here about the role of the legal system in education.

“The judiciary is amazingly understudied, even though it is ubiquitous in the regulation of public education,” said Chester E. Finn Jr., the president of the Thomas B. Fordham Institute, which sponsored the Oct. 15 conference along with the American Enterprise Institute, both in Washington.

The conference was titled “From Brown to ‘Bong Hits’: Assessing a Half-Century of Judicial Involvement in Education.” The first case is a reference to Brown v. Board of Education of Topeka, the U.S. Supreme Court’s historic 1954 decision outlawing racial segregation in precollegiate education. The second refers to Morse v. Frederick, a 2007 ruling by the justices that a high school student’s display of a banner with the message “Bong Hits 4 Jesus,” which was perceived by school authorities as pro-illegal-drugs, was not protected free speech under the First Amendment.

Rulings Common

The conference covered a lot of ground, including school desegregation, discipline, special education, testing and accountability, and student expression. The topics were tied together with a hypothesis that court intervention into school affairs has grown significantly since Brown—and not always in ways that contribute to the public schools’ central mission.
“Midway through the 20th century, federal court rulings on elementary and secondary education remained rare events,” R. Shep Melnick, a politics professor at Boston College, wrote in a draft conference paper. “Today, they are commonplace.”

Mr. Melnick cites a number of explanations for the legal activity. They include the Brown decision’s introduction of the effort to desegregate, the enactment of federal civil rights laws in the 1960s and 1970s affecting public schools, the growing federal role in education policy and funding, and the rise of what he calls “adversarial legalism”—such as help from nonprofit legal organizations for parents and students in disputes with schools over such matters as free speech.

Several participants at the conference, held at the aei’s offices, cited particular Supreme Court decisions that they believe helped fuel the trend.

Attention was paid to such landmark cases as Tinker v. Des Moines Independent Community School District, the 1969 decision upholding the right of students to protest the Vietnam War by wearing black armbands so long as school was not substantially disrupted.

But the attendees also discussed some less-remembered cases that played a significant role in expanding judicial involvement in schools.

For Mr. Melnick, one of those is Monroe v. Pape, a 1961 decision about municipal liability that helped open the door for students, parents, and teachers to sue school districts and administrators for money damages when they believe their constitutional or statutory rights have been violated.

For Richard Arum, a professor of sociology and education at New York University, one Supreme Court case stands out as central to the trend: Goss v. Lopez, the 1975 decision requiring that schools provide at least minimal due-process protections for students subject to suspensions of fewer than 10 days, and more-formal protections in cases of longer suspensions.

School discipline in general, and the schools’ ability to teach and prepare students for citizenship, “have been fundamentally undermined since Goss v. Lopez,” Mr. Arum argued at the conference.

The professor and his colleagues recently conducted a national telephone survey of 600 high school teachers and administrators, to gauge their perceptions and experiences on law and school discipline. According to Mr. Arum’s draft paper, 15 percent of teachers and 55 percent of administrators reported having been threatened with a lawsuit over school matters. The proportions of the teachers and administrators who were actually sued were lower, although the paper doesn’t give specific figures.

“The basic authority relationships in school have been changed by law’s involvement in schools,” Mr. Arum said at the conference.

A ‘Defensive Crouch’

Fear of lawsuits contributes to the average superintendent’s tendency to maintain a conservative, risk-averse approach to the job, said Frederick M. Hess, a resident scholar and the director of education policy studies at aei.

“Career superintendents are taught to remain in a defensive crouch,” said Mr. Hess, who noted in his remarks that many schools chiefs have moved up through the ranks of their school systems, where consensus and collegiality are favored, and that their limited formal training in school law has tended to stress avoiding conflicts.

Mr. Hess’ draft paper promotes a different approach. He presents case studies of superintendents who did not let excessive caution over legal considerations or the barriers of collective bargaining block efforts to improve education.

One was Alan D. Bersin, a lawyer and former U.S. attorney who was the superintendent of the San Diego school district from 1998 to 2005. Mr. Bersin sought to change the mind-set among district administrators about legal and policy issues, bringing in outside lawyers to help shape reform strategies.

Mr. Bersin, now a member of the California state board of education, attended the conference as a discussant for some of the papers.

Legal Trends

Most of the conference participants agreed that certain areas of school litigation have passed their peak. The desegregation era is in its last chapter, they agreed, especially in light of the Supreme Court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District, which sharply limited the permissible voluntary uses of race in schools.
School finance litigation may have also peaked, as judges seem “disinclined to undertake continuing supervision of school finance policies,” notwithstanding some big cases that remain active, John Dinan, an associate professor of political science at Wake Forest University, in Winston-Salem, N.C., says in his draft paper.

Cases on religious controversies in the schools have probably not peaked, however, and advocates on the political right have increasingly relied on First Amendment free-speech arguments to protect such activities as student prayer or the wearing of T-shirts with religious messages, said Joshua M. Dunn, an assistant professor of political science at the University of Colorado at Colorado Springs.

The overall tone of the conference was lacking in sympathy for student rights. In his paper, however, Mr. Dunn expressed support for legal standards that respect students’ free-speech rights.

One provocative analysis came from Samuel R. Bagenstos, a law professor at Washington University, in St. Louis, who researched federal court dockets and concluded that fewer lawsuits are filed under the federal Individuals with Disabilities Education Act than is widely perceived.

Searching data since 2000, he found that an average of just 374 suits each year were filed under the special education law nationwide.

And the federal No Child Left Behind Act has generated far fewer lawsuits than that since it became law in 2002.

“There’s been a trickle of suits, rather than a flood,” said Martha Derthick, a retired American government professor at the University of Virginia, in Charlottesville.

Robert Gordon, a senior fellow at the Center for American Progress, a Washington think tank, said a major reason is that the NCLB law does not include an express right for parents, or anyone else, to sue to enforce individual rights. There has been some discussion of including such a “private right of action” in the reauthorization of the law.

If that happened, the schools could face a flood of new lawsuits, conference participants said.

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What do public school principals and teachers share in common with the average police officer on the street?

The answer is an interest in the body of law concerning official immunity from liability in lawsuits that challenge their actions. The police are sometimes sued personally by criminals or suspects over charges of the alleged deprivation of constitutional rights. Educators are sued by students and their parents over a whole range of actions.

Under the U.S. Supreme Court’s precedents on so-called qualified immunity, such government officials are immune from suit unless they violated clearly established statutory or constitutional rights of which a reasonable person would have known. The principle has enormous practical consequences for educators and other public officials. If they are sued and can establish their immunity fairly early in the legal process, they are saved from countless hours and costs of litigation.

The question for the Supreme Court in a case argued today and stemming from a challenged police search is whether lower-court judges must follow a particular “order of battle” when analyzing such civil rights claims. Must they determine first whether a constitutional violation has even occurred before they decide whether an official has immunity?

That is the order the courts are supposed to follow under a 2001 Supreme Court decision known as Saucier v. Katz. In that decision, Justice Anthony M. Kennedy said that if lawsuits against government officials were often decided on immunity grounds alone, the courts would never resolve many constitutional questions.

In 2007, in a case about a student’s display of a “Bong Hits 4 Jesus” banner, one question for the Supreme Court was whether a high school principal merited qualified immunity for disciplining the student.

A lower federal court had ruled that the principal was not immune from a suit for damages because the student’s right to display the banner was so clearly established that the principal should have known she could not discipline him.

But in Morse v. Frederick, the Supreme Court unanimously agreed that the principal deserved qualified immunity because it was far from clear at the time of the incident that the “Bong Hits” banner, with its sly drug message, was protected student speech. In fact, the justices ruled 5-4 that it was not protected.

In a concurring opinion, Justice Stephen G. Breyer said the Morse case could easily have been decided on qualified-immunity grounds alone if not for the requirement from the Saucier decision that the courts first ask whether a constitutional right had been violated.

“The relative ease with which we could decide this case on the qualified-immunity ground, and thereby avoid deciding a far more difficult constitutional question, underscores the need to lift the rigid ‘order of battle’ decisionmaking requirement that this court imposed upon lower courts in Saucier,” Justice Breyer said in his Morse concurrence.

During oral arguments on Oct. 14 in Pearson v. Callahan (Case No. 07-751), a case raising immunity questions about police officers who were sued over an alleged unconstitutional search of a home for drugs, Justice Breyer picked up the cause for overruling or scaling back the Saucier requirement. (The court itself had asked the parties in the police-search case to address the issue.)

Noting some of the complex constitutional issues that were being raised by the police search, Justice Breyer said “constitutional questions in this area are like the stars in the sky. There are so many. Rather than having the judges answer each one and getting everything mixed up, why not just have them take whatever is the easier path? As a judge, I like to take what is the easier path.”

“And if it’s easier to deal with the qualified immunity, deal with it and forget the rest of it,” Justice Breyer said to Malcom L. Stewart, the deputy U.S. solicitor general, who was arguing as a friend-of-the-court on the side of the police officers.

Mr. Stewart offered no disagreement to Justice Breyer on the idea of doing away with the Saucier requirement.

“The mandatory order of decision for qualified-immunity cases announced in Saucier v. Katz should be overruled,” Mr. Stewart told the justices. (The Justice Department's brief is here.)

Justice Breyer appeared to gain the support of the Supreme Court’s newest members to his cause. Both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., neither of whom were on the court when Saucier was decided, raised questions about that ruling’s requirement.

Chief Justice Roberts said he had had “a few of these cases” when he was on the federal appeals court in Washington.

“I thought it was very odd that I had to go and decide a difficult constitutional issue and then not worry about it because in one sentence you say, well, but the issue is not clearly established and so it’s qualified immunity” for the public official, the chief justice said.

But Justice Kennedy suggested that the theory behind Saucier remained valid—that the police (in this type of case) benefit from clearer constitutional guidance when the law is fully developed.

“It seems to me that we could have learned a lot if the courts of appeals had addressed” some of the constitutional issues raised by the police search in the case before the court, Justice Kennedy said.

The American Civil Liberties Union filed a friend-of-the-court brief on the side of the suspect who sued the police in the Pearson case, urging the justices to retain the Saucier requirement. The civil rights group noted that before the Saucier ruling, many suits against public officials were decided on immunity grounds without answering the fundamental constitutional questions at issue. Thus, in the next case, educators or police officers could again claim that the law in a particularly area was not clearly established, the group said.

A ruling in the case is expected by next June.

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A federal appeals court today upheld immunity for administrators at a Kentucky middle school over their role in turning in a student to law enforcement officials for giving a prescription pill to another student.

The student and her parents sued the Grant County school district and various officials, alleging that their actions violated the girl's rights under the Fourth and Fifth Amendments of the U.S. Constitution be officials essentialy coerced a confession out of her.

The alleged facts are a little bizarre, because according to court papers, the 7th grade student identified as A.E. went to the school nurse on the last day of school in 2006 to get take her attention deficit hyperactivity disorder medication. Because it was the last day, the nurse insisted that the student take the prescription bottle, which had four Adderall pills remaining, with her.

Later, another student asked A.E. for one of the pills, and after initially refusing, A.E. relented and gave her friend a pill. This eventually got back to school officials, who called A.E. into the office the next fall and made her write out an account of what happened. The deputy principal turned the statement over to a sherrif's deputy, as the district contends was required under state law. The girl ended up in juvenile court, where she was required to complete a diversion program.

In its Oct. 10 opinion in S.E. v. Grant County Board of Education, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, held that the girl's rights were not violated. The court held that the student was not seized in violation of the Fourth Amendment when she was forced to come to the school office. And the assistant principal was not acting at the behest of law enforcement when he required A.E. the write her statement, the court said.

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The U.S. Supreme Court today heard arguments in a case involving alleged sexual harassment in a school district central office. The justices appeared inclined to give a broad reading of an anti-retaliation provision of the main federal employment-discrimination law.

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace based on race, sex, and other factors, and it covers sexual harassment. One provision of Title VII is designed to prohibit retaliation by employers against those who “opposed” an unlawful employment practice, or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” related to such an unlawful practice.

The awkwardly worded provision was the result of a compromise in Congress to strike a balance that would “protect the rights of employees to report allegedly discriminatory activity, as well as employers’ rights to manage their workplaces,” Francis H. Young, a lawyer representing the school district, told the justices during oral arguments on Oct. 8 in Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn. (Case No. 06-1595.)

The appeal was brought by Vicky S. Crawford, a longtime payroll specialist for the Metro Nashville school district. According to court papers, the Metro Nashville-Davidson County government, which encompasses the 75,000-student district, began an investigation in 2002 after receiving allegations that Gene Hughes, the school system’s director of employee relations, was harassing women in his office.

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

The investigator could not corroborate the most serious charges of sexual harassment againt Hughes, and there was no disciplinary action taken against him. the supervisor had not been corroborated. Within a few months, Crawford was dismissed from her job, with the government agency citing financial improprieties in the payroll division.

Crawford sued under 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 appeals court said Crawford did not merit protection under the “opposition” clause of the anti-retaliation provision. Her actions to give investigators unfavorable information about the supervisor did not qualify as “overt opposition” because Crawford did not initiate her own sexual harassment complaint, the court said.

Eric Schnapper, a lawyer representing the dismissed employee before the Supreme Court, said, “When Vicky Crawford reported to city officials that she had been repeatedly harassed by the [school system’s] director of employee relations, her conduct was protected by [the anti-retaliation section] of Title VII.” [Crawford's merits brief is here. The school system's brief is here.]

Crawford has the support of numerous civil rights groups, as well as the Tennessee Education Association and Metropolitan Nashville Education Association, which filed a friend-of-the-court brief on her side. The Bush administration also supports the ex-employee’s interpretation of the anti-retaliation provision.

Lisa S. Blatt, an assistant to the U.S. solicitor general, told the justices that the 6th Circuit court “left a gaping hole” in Title VII protection.

“It is an inexplicable gap that a complaining witness in an employer investigation would be unprotected from retaliation,” she said.

The school district is supported by the National School Boards Association, which argued in a brief that allowing “passive involvement” in an internal investigation of workplace discrimination would mean that “poorly performing employees could use Title VII as a sword to insulate themselves from adverse employment action by intentionally involving themselves in an internal investigation,” the NSBA brief said.

During the arguments, Justice Antonin Scalia took up that theme.

“Whenever the employer conducts such an investigation, any employee who is smart enough to come in and testify against sexual harassment has a guaranteed job,” he said. “It is almost like ... being a federal judge.”

But several justices sharply questioned Mr. Young, the school system’s lawyer.
Justice John Paul Stevens noted that Ms. Crawford said to her supervisor during one instance of alleged harassment, “Get the hell out of my office.”

“She’s opposing his advance to her,” Justice Stevens said. “That’s an active opposition, it seems.”

Justice Ruth Bader Ginsburg said that Title VII “is a statute that’s meant to govern the workplace with all of its realities. One of them was when they asked, ‘Well, why didn’t you make a complaint, use whatever internal remedies there are?’ She said, ‘Because the person in this outfit who is charged with receiving complaints is the harasser.’”

The case will be decided by next June.

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A federal appeals court has upheld a Michigan school district's restrictions on a student's distribution of an anti-abortion leaflet at his middle school.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled unanimously that a school principal could place reasonable "time, place, and manner" restrictions on the leaflet.

A student identified in court papers as Michael L. was a 14-year-old 8th grader at Jefferson Middle School in Monroe, Mich., in 2006 when he first sought to distribute leaflets citing abortion statistics on a Pro-Life Day of Silent Solidarity promoted nationally by the group Stand True.

Michael and his parents parents sued the district. The two sides reached an agreement on some matters, such as allowing the student to wear red tape on his wrists and a shirt that said, "Pray to end abortion."

But they could not agree on the leaflet distribution, and a federal district judge issued an injunction barring the district from enforcing its leaflet-distribution policy against Michael. The school sought to limit him to putting leaflets on a school bulletin board and distributing them from a table in the school cafeteria.

The district court concluded that the school policy was overbroad, and that Michael's distribution of the leaflets in school hallways would not cause material and substantial disruption.

In its Oct. 7 decision in M.A.L. v. Kinsland, the 6th Circuit panel reversed the district court.

"The school in this case offered to allow Michael to post his leaflets on bulletin boards in the
hallways and to distribute them in the cafeteria during lunch, despite the fact that Michael has never sought permission to distribute his leaflets in accordance with the school’s distribution policy," the appeals court said. "This minor regulation of Michael’s speech is eminently reasonable."

There was no indication the school's time, place, and manner restrictions on the leaflet distribution were intended to suppress Michael's anti-abortion message, the court said.

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The U.S. Supreme Court today declined to review several education cases, including the appeal of two Massachusetts families of a lower court decision that a school district did not violate their rights by exposing children to books promoting tolerance for gay marriage and families led by same-sex couples.

The case was one of hundreds the justices refused to review on the first formal day of their new term.

A three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, had ruled unanimously in January 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 Jan. 31 opinion, 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.

In their appeal, the parents said their rights to direct the upbringing of their children, as the Supreme Court interpreted them in two 1920s-era cases, “preclude a public school from egregiously usurping the parental role in religious and moral matters of the utmost importance.”

The justices declined without comment to hear the appeal in Parker v. Hurley (Case No. 07-1368), and their action is not a ruling on the merits of the case.

Other School Cases Denied

Also on Oct. 6, the justices denied review in these cases:

Lowery v. Euverard (No. 07-1567), an appeal on behalf of four high school football players in Tennessee who claimed their First Amendment free speech rights were violated when they were dismissed from their team after complaining publicly about the behavior of their coach.

Manbeck v. Katonah-Lewisboro School District (No. 08-116), in which a New York state parent was challenging the annual cutoff for eligibility for entering kindergarten. The state says children must have reached age 5 by Dec. 1, while the child in this case turned 5 on Dec. 11, 2005.

Policastro v. Kontogiannis (No. 07-1341), in which a New Jersey teacher was appealing rulings that denied him access to teacher mailboxes at his high school to distribute a memo related to labor negotiations. The U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled in January to uphold school officials' actions in removing the teacher's memo because "of the perceived disturbance it caused."

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A pair of special education parents in Ohio won their battle in the U.S. Supreme Court last year, but this week they lost the war.

Jeff and Sandee Winkelman had sued the Parma, Ohio, school district over the special education services for their son, who has a form of autism. They lost on the merits in U.S. District Court, where they had the help of a lawyer. By the time they appealed to the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, they could no longer afford legal counsel, so they sought to represent themselves. The 6th Circuit ruled they could not represent their child in that court.

The Winkelmans appealed that issue to the Supreme Court, and in May 2007, the court ruled that the Individuals with Disabilities Education Act gave parents certain rights to represent themselves and their children in special education proceedings. The decision in Winkelman v. Parma City School District was unanimous in some respects and 7-2 in others.

Education Week reported on the decision here and here, and my colleague Christina Samuels profiled the family and the case here.

Now the 6th Circuit has reconsidered their case, with the parents representing themselves. But in a short, unpublished opinion, the appeals court affirmed the federal district court's original decision against the family.

"The Winkelmans first argue that the district court erred by placing the burden of proof on
them, rather than on the school district," the appeals court said. "Next, they argue that the district court erred by finding that the school district had provided the [free, appropriate public education] with regard to music therapy, occupational therapy, and speech therapy. Finally, they contend that the district court erred by approving the hearing officer’s decision to disregard the Winkelmans’ expert-witness’s testimony as not credible."

"After carefully reviewing the record, the law, and the arguments presented in the appellate
briefs," the court adds, "we conclude that each of the Winkelmans’ assignments of error is without merit."

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I love this little case. A Texas man, Brent E. Crummey, sought to pay his school district taxes with $50 U.S. American Eagle gold bullion coins, and apparently have the district accept the higher value of the coins in the open gold market than their face value as legal tender. The school district said no, so the man sued.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, ruled against the man on Oct. 2, holding that "as legal tender, a dollar is a dollar."

"The legal monetary value of Crummey’s fifty dollar American Gold Eagle coin is equivalent to that of a fifty dollar Federal Reserve Note," the court said in Crummey v. Klein Independent School District .

Incidentally, according to Monex Precious Metals, an ounce of gold was trading for around $829 on Friday. Crummey's $50 Gold Eagles are one-ounce coins. But, of course, the school district wasn't going to reap the difference, since Crummey was seeking to have each coin settle $829 (or whatever the market value was at the time) of his tax bill.

Posted by Mark Walsh at 3:13 PM | Permalink | 1 Comment | TrackBacks (0)

I have the following article in next week's issue of Education Week about education cases I am following in the new U.S. Supreme Court term. I have added links to lower-court rulings or Supreme Court filings where available.

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The 2008-09 term of the U.S. Supreme Court, which begins this week, has a docket that includes education-related cases involving employment and sex discrimination, the rights of teachers’ unions, and legal immunity for public officials, including educators. The justices will continue to add cases to be heard during the new term for the next several months. These are among the cases already accepted for review:

Title IX
In what could be the most significant case for education, the justices will decide whether Title IX of the Education Amendments of 1972 provides the exclusive legal remedy for cases of sex discrimination in public schools.

The parents of a Massachusetts kindergartner who allegedly faced sexual harassment from a 3rd grader on her school bus are seeking to be able to sue school officials under a broader federal civil rights law after their Title IX claim was rejected. Claims brought under Section 1983, which derives from the Civil Rights Act of 1871, typically allege a violation of the equal-protection clause of the 14th Amendment. Such a constitutional claim doesn’t necessarily face the same legal hurdles that Title IX claims face.

The case arises out of claims that officials of the 4,460-student Barnstable school district failed to do enough to address the harassment of the kindergartner. The federal appeals court that ruled against the family’s Title IX claim held in the same decision that the family’s Section 1983 claim was foreclosed by the more recent federal statute.

Fitzgerald v. Barnstable School Committee (Case No. 07-1125) is scheduled for argument Dec. 2.
The family's merits brief is here.
A friend-of-the-court brief on the family's side by the American Civil Liberties Union and the National Women's Law Center is here.
The school district's response brief isn't due until Oct. 22.

Teachers’ Unions
The court will review an Idaho law that bars school districts and other local government agencies from making deductions from employees’ paychecks for political causes.
The Idaho Education Association, its Pocatello affiliate, and several other public-employee unions in the state, which rely on the deductions to help pay for their political action committees, challenged the law as an infringement of their First Amendment rights of free speech and association.

A federal appeals court agreed with the unions and struck down the Idaho law as hampering their political speech. The Supreme Court accepted the state’s request to review the ruling.
Ysursa v. Pocatello Education Association (No. 07-869) will be argued Nov. 3.
The state of Idaho's merits brief is here.
The unions' response brief is here.

Employment Discrimination
A case stemming from the central office of the Nashville-Davidson County, Tenn., school system will provide the basis for a potentially important ruling on job discrimination.

The question 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 of alleged sexual harassment of another worker. Vicky S. Crawford, a district payroll coordinator who had cooperated in the investigation of her boss, the director of employee relations, was dismissed a few months later for alleged financial improprieties. Ms. Crawford claimed it was a case of retaliation, but two lower federal courts held that her situation was not covered by a Title VII provision meant to protect workers who participate in internal investigations. [The 6th Circuit's opinion is here.]

The justices agreed to review those rulings in Crawford v. Metropolitan Government of Nashville and Davidson County (No. 06-1595), which will be argued Oct. 8.
Crawford's brief is here.
Nashville-Davidson County's response brief is here.
A friend-of-the-court brief on Crawford's side by the Tennessee Education Association is here.
A brief on the county government's side by the National School Boards Association is here.

Legal Immunity
School administrators and teachers usually don’t have much reason to follow Supreme Court cases about the constitutionality of a police search of a home for illegal drugs. But such a case from Utah presents an important question about qualified immunity, the principle that public officials such as school principals or police officers do not face liability as long as their challenged actions did not violate clearly established law.

In Pearson v. Callahan (No. 07-751), the justices asked the parties to use the case of a challenged police search to also address a Supreme Court precedent that requires lower courts weighing civil rights challenges to first decide whether any constitutional violation occurred before deciding whether the official merits qualified immunity.

The theory under that 2001 decision, Saucier v. Katz, is that without courts first ruling on constitutional questions, the law would go undeveloped in many areas. But many legal commentators have criticized the ruling, and a decision by the justices to overturn it in this case would make it easier for school administrators and other officials to stop lawsuits against them earlier in the legal process. [This Education Week story goes into further detail.]
The most relevant briefs on the qualified-immunity issue are from the U.S. solicitor general here, from the ACLU here, and from the Texas Association of School Boards here.

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The U.S. Supreme Court issued an orders list today adding 10 new cases for its 2008-09 term, but it did not grant review of any of the dozen or so education cases that were on its agenda.

The court typically meets in the week before the formal opening of its new term, which is next Monday, Oct. 6, to review the hundreds of appeals that have piled up over the summer. Among the school issues arising in those cases are student free speech, the burden of proof in special education proceedings, parents' objections to school lessons on gay tolerance, and teachers' access to school mailboxes for communicating with other teachers.

Let me stress that the justices did not deny review in any of these education cases today. The early "grant" list from the last week of September typically only announces cases the court is adding to its docket. A big orders list will come out on Monday, and most of the appeals that were not granted today will probably be denied review.

One other piece of business the court took care of today involved its decision last June striking down the death penalty in cases of child rape. I blogged then about how the ruling in Kennedy v. Louisiana implicated some issues relating to the child sex abuse scandals involving schools and churches.

After the decision came down, the court was made aware that it had not addressed the fact that the military justice system permitted the death penalty for the crime of child rape, which some argued undercut the majority's claim that there was a national consensus against such a penalty.

This week, the justices considered these arguments in their private conference, and the result was a modification to their original opinion in Kennedy, but a rejection of a request to reopen the case. The court announces its disposition, and has a statement from the original five justices in the majority in the case here. Justice Antonin Scalia, joined by Chief Justice John G. Roberts Jr., issues this statement on the denial of the request for rehearing. Justices Clarence Thomas and Samuel A. Alito Jr. would have granted rehearing.

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