November 2008 Archives

A federal appeals court today revived part of a lawsuit that challenges a Tennessee school district's decision to contract out its alternative education program to a private Christian school.

A panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, voted 2-1 to revive the suit challenging the Jefferson County, Tenn., school board's decision to use the religious school as a violation of the First Amendment's prohibition against government establishment of religion.

The majority in Smith v. Jefferson County School Board said there was a genuine issue of material fact as to whether the day program used by the public alternative students at the private Kingswood School was infused with the same Christian focus as Kingswood's private residential program. The evidence suggested the two programs both had a religious focus, but the court sent the case back to a trial court to decide. The majority said this:

Although the stated secular purpose of the Board—affording an education to alternative school students in the public-school system by sending them to the private Kingswood School in order to help resolve a budget crisis—arguably predominates over any inclination of the Board to advance religion, if the day program was infused with the same focus on Christianity as the residential program, a reasonable person could conclude that the Board was endorsing religion by delegating all of its duties to Kingswood.

The judge who dissented on the establishment clause issue said the plaintiffs did not have standing to bring such a claim.

The court unanimously upheld summary judgment for the school district on several other claims brought by the three teachers who lost their jobs when the Jefferson County district shut down its public alternative school program.

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The federal No Child Left Behind Act does not provide a private right to sue over its parental-notice and tutoring provisions, a federal appeals court has ruled.

A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled unanimously on Nov. 20 in a case brought by a parents' group in Newark, N.J.

"The overall structure of the act supports the conclusion that Congress did not intend to confer enforceable individual rights" under the parental-notice and supplemental education services provisions, the court said in Newark Parents Association v. Newark Public Schools.

The court says it is the first federal appeals court to consider whether the NCLB law contains a private right of action, but it notes that every one of several federal district courts to rule on the issue has also decided that private suits aren't authorized under the law.

The No Child Left Behind Act is the main federal K-12 education law, providing funding to the states and school districts in exchange for a host of accountability provisions. The law says that schools deemed in need of improvement must notify parents of the designation and and the fact that the district must pay for tutoring services for children in such schools.

The Newark parents group charged in its suit that parents of children in schools in need of improvement in the Newark district never received notice or received insufficient notice of their schools' status and the opportunities for tutoring.

In its decision, the 3rd Circuit court says the NCLB offers parental notice and supplemental education services "in the aggregate" and "not on any individual student's right" to receive the services.

"The act contains no procedures—administrative or judicial—by which individuals can enforce violations of its notice, transfer, or supplemental
educational services provisions. Instead, only the [U.S.] secretary of education can enforce a state’s violation of the act," the court said.

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San Antonio—Where do you get your information about school law?

That’s a question two scholars here at the Education Law Association meeting asked in a survey of school lawyers, professors who teach school law, and others.

The survey by Justin M. Bathon, an assistant professor of educational leadership at the University of Kentucky, and Kevin P. Brady, an assistant professor in the same field at North Carolina State University, was based on a small sample. Still, there were interesting findings.

Legal textbooks were the most cited category of resource for school law information, following by Internet-based searches, case law review, and other sources. Eight out of 10 respondents strongly agreed or agreed that the availability of online resources changed how they did their legal research.

Practicing attorneys were more likely to turn to case law reviews as their first resource, while professors were more likely to turn to textbooks first.

Bathon, who runs The Edjurist blog on school law (where the survey results can be found), and Brady noted that there has been an explosion of free Web-based resources on the law generally, and on education law. But many of them don't yet measure up to established, fee-based services such as Lexis and Westlaw, they said. Such services, which can costs hundreds of dollars a month, are sometimes available to education students through their universities, but K-12 practitioners and even many lawyers can't afford them once they are out of such higher education programs, the scholars said.

As for one of the newest forms of online resources, only 24 percent of respondents reported using blogs as a source of education law, the survey found.

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San Antonio—On-the-job speech by teachers and other public school employees is getting less protection in the courts.

That’s the conclusion of two scholars presenting here at the annual meeting of the Education Law Association. The Dayton, Ohio-based group is made up of K-12 educators, school lawyers, and many professors who teach school law as part of educational leadership programs.

Richard T. Geisel, an assistant professor of educational leadership at Grand Valley State University in Grand Rapids, Mich.; and Brenda R. Kallio, an associate professor in that discipline at the University of North Dakota in Grand Forks, analyzed recent federal cases involving adverse job actions against public school employees based on their speech.

The key development is a 2006 decision by the U.S. Supreme Court in Garcetti v. Ceballos, a case arising out of a prosecutor’s office in which the justices ruled that speech by public employees “pursuant to their official duties” is not protected by the First Amendment.

A number of federal appeals courts have applied the ruling to school employee cases, despite some uncertainty caused by language in Justice Anthony M. Kennedy’s majority opinion in Garcetti suggesting that the high court might view a employee speech case related to “scholarship or teaching” differently.

“Regardless of dicta in Justice Kennedy’s opinion, Garcetti is being applied to school cases,” Geisel said in his presentation here on Nov. 20.

Geisel and Kallio found that since Garcetti was decided, six separate federal appeals courts have applied Garcetti to public school speech cases, usually to rule that the speech was unprotected.

For example, the U.S. Court of Appeals for the 10th Circuit, in Denver, ruled against a school superintendent who complained to her school board and the federal government about irregularities in a Head Start program was not engaged in protected speech. The court held in Casey v. West Las Vegas Independent School District that the speech by the superintendent, who was demoted and later dismissed, was related to her job and thus fell under the standard of Garcetti.

Geisel and Kallio noted that two other federal circuit courts have declined to apply Garcetti in the educational context.

In their paper, the two scholars say it may be premature to characterize the full impact of Garcetti on education, but “one must acknowledge that Garcetti has already made a substantial impact on the analysis many of the federal circuits engage in when reviewing such cases.”

UPDATE: Geisel e-mailed me to point out that in the Casey case in the 10th Circuit, the court did allow the superintendent's retaliation case to move forward based on a separate communication she had with the state attorney general about alleged open-meetings law violations by her board. Geisel had mentioned this in his presentation, and I failed to note it in my post above.

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It's not often that school districts are involved in lawsuits under the federal Clean Air Act. But a California district has been, although without success in its efforts to use the federal law to halt the construction of a power plant near one of its schools.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled unanimously today to uphold the dismissal of a suit filed by the Romoland school district against a power company and the South Coast Air Quality Management District.

The school district in Riverside County, Calif., and other plaintiffs objected to the proposed construction of an 810-megawatt power plant about 1,100 feet away from Romoland Elementary School. The Inland Empire Energy Center, a subsidiary of General Electric Co., moved to dismiss the suit because the company had been granted a permit under the Clean Air Act.

A federal district court granted the motion to dismiss. In its opinion in Romoland School District v. Inland Empire Energy Center that is heavy on federal procedural issues, the 9th Circuit court upheld the lower court and that the district and other plaintiffs where challenging the power plant in the wrong forum.

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The following story will appear in next week's issue of Education Week. I wasn't sure what to expect going into Wednesday's arguments about the Summum "7 Aphorisms" monument case. One thing I noticed is that virtually every conservative legal organization that has ever been involved in suing a school district was involved in the case, and not all on the same side. So I knew it had to be interesting. (Here's a link to all the briefs, thanks to the ABA.)

Monument Case Before High Court Has Implications for Schools

Issue of government speech
arises over Utah park displays

By Mark Walsh
Washington

It wasn’t apparent from the oral arguments last week, but a case before the U.S. Supreme Court about a small religious sect’s efforts to display a monument with its principles in a city park has implications for free-speech and establishment-of-religion questions in public schools.

Summum, according to its Web site and court papers, is a 33-year-old, Utah-based sect that incorporates elements of “Gnostic Christianity” and practices “modern mummification” for both people and pets.

The group wants to place a stone monument in a public park in Pleasant Grove City, Utah, displaying its “Seven Aphorisms”—principles that revolve around such terms as “vibration,” “opposition,” and “rhythm.” The city displays a number of permanent items in the park, including a pioneer cabin, Utah’s oldest school building, and a monument of the Ten Commandments donated by a civic group, the Fraternal Order of Eagles, in 1971.

The city rejected the Summum sect’s proposed monument, saying such permanent additions to the park must relate to the city’s history or be donated by a group with strong ties to the community. That prompted a lawsuit primarily on First Amendment free-speech grounds.

“The city here gave the Eagles access to its public park for a display about the Ten Commandments, and it denied Summum access for a display about the tenets of its faith,” Pamela Harris, a lawyer representing the religious group, told the justices during the Nov. 12 arguments in Pleasant Grove City, Utah v. Summum (Case No. 07-665). “That’s a violation of the core free-speech principle that the government may not favor one message over another in a public forum.”

Jay A. Sekulow, the lawyer representing the Utah city, told the justices that a federal appeals court erred when, in ruling for the religious group last year, it held that the city’s acceptance of variety of permanent displays created a public forum under the First Amendment.

“Here each of the monuments on display ... have been selected by the government, are owned by the government, controlled by the government, and are displayed on government property,” he said. “When the government is speaking, it is free from the traditional free-speech constraints of the First Amendment.”

School Tiles and Textbooks

Numerous groups filed friend-of-the-court briefs in the case, with some citing potentially analogous situations in the public schools.

One case cited in the briefs involved parents who were denied permission to put religious messages on memorial tiles at Columbine High School after the 1999 slayings at the Colorado school. A federal appeals court had ruled that the tile project on a school wall was a form of school-sponsored speech, and that school officials were not practicing viewpoint discrimination when they barred the religious messages.

Another case cited involved a challenge to the Texas state board of education’s approval of textbooks by the author of a rejected science text. A federal appeals court held that the textbook-approval process was the state speaking, and not the author.

Liberty Counsel, a conservative legal group that filed a friend-of-the-court brief on the side of Pleasant Grove City, argued that when the government speaks on its own property, it does not have to let others speak as well.

If the Supreme Court rules for Summum, “whenever a teacher cites disapproval of smoking, she will be required to open her classroom to private speakers with opposing messages,” Liberty Counsel’s brief says.

Meanwhile, any case in which the Ten Commandments lurk in the background is potentially important for educators, because there are ongoing efforts—some by private groups, some by schools themselves—to find constitutional ways to display the Decalogue in public schools.

During oral arguments, the justices appeared sympathetic to the idea that Pleasant Grove City should not have to open the “forum” of its park to all permanent displays. But the justices were also troubled by how to analyze the Ten Commandments monument in the city’s park.

“If it’s government speech, ... what is the government doing supporting the Ten Commandments?” Chief Justice John G. Roberts Jr. asked.

Justice Antonin Scalia later said it would depend on what the government was saying about the monument.

“If the government is saying the Ten Commandments are the word of God, that’s one thing,” he said, “and if the government is saying the Ten Commandments are an important part of our national heritage, that’s something else.”

Justice Scalia is on record as deeming such government displays of the commandments to be the latter, and perfectly constitutional. In 2005, the Supreme Court sent a mixed message about such displays, upholding the display of a civic-donated Ten Commandments monument similar to the one in Pleasant Grove City, while striking down displays in two courthouses because those displays had been motivated by religious purposes.

The two decisions—McCreary County v. American Civil Liberties Union of Kentucky and Van Orden v. Perry—did not affect the validity of the court’s 1980 ruling in Stone v. Graham, which struck down a Kentucky law requiring that the commandments be displayed in public schools. (See Education Week, June 27, 2005.)

Ms. Harris, the lawyer for Summum, did her best to try to convince the justices that the religious monuments would not be perceived as the government’s message.

“Given all the legal sensitivities around a Ten Commandments monument, your average citizen, when they see a religious monument in a park, may well think that may be private speech because the government usually can’t endorse ... religious speech,” she said.

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A federal appeals court has upheld a $50,000 damages award to two students who were often suspended from riding their public school bus because the driver objected to their body odor.

The U.S. Court of Appeals for the 5th Circuit, in New Orleans, upheld a ruling by a federal magistrate judge that awarded $25,000 each to the two children under Mississippi tort law. The magistrate found that a bus driver for the North Panola, Miss., school district had barred the students from the bus some days and had sprayed or allowed other students to spray deodorizer around the children on other occasions during the 2004-05 school year. On one day, the driver closed the bus door on one of the children, trapping his hand and dragging him for a few feet before the boy could free his hand.

A three-judge panel of the 5th Circuit court on Nov. 7 issued this short, unanimous opinion in Turner v. North Panola School District. To learn more of the facts, I had to track down the magistrate judge's Aug. 14, 2007, opinion. (It isn't available for free on the Web, but it is available on the PACER system of the U.S. District Court for the Northern District of Mississippi.)

The children's parents complained to school officials repeatedly about the bus driver's conduct, according to court papers. The judge noted that the parents did not dispute that their children had an odor problem. One source of the problem was a severe case of athlete's foot, and the family could not afford appropriate medical care, according to court papers.

Only near the end of the school year did administrators order that the children's bus privileges be restored, and the district ordered a school nurse to visit the family to discuss personal hygiene.

The family filed a lawsuit against the district and school officials raising federal constitutional and state tort issues. A jury ruled for the defendants on the federal issues. But the magistrate judge ruled for the two children on the state law claims, holding that that school administrators' negligence led to the children missing school and showing signs of depression.

The district administration "did not adequately supervise its employees, and thereby deprived the students of a safe school environment," the judge said.

The 5th Circuit panel said it was affirming "for the reasons assigned in the magistrate judge's able opinion."

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The Juneau, Alaska, school district has reached a settlement with former student Joseph Frederick, who was disciplined over his 2002 display of a banner that said "Bong Hits 4 Jesus," according to this story in the Juneau Empire.

This struck me as interesting, because the district and a school principal won their case in the U.S. Supreme Court, which ruled last year in Morse v. Frederick that the 'Bong Hits' banner was not protected speech and that the principal merited qualified immunity for disciplining the student.

But a seven-year litigation saga was continuing, evidently with the possibility that Frederick might win some relief under the Alaska Constitution. So the school board settled with Frederick and his lawyers for $45,000, the Juneau newspaper reported.

The American Civil Liberties Union of Alaska has this press release about the settlement.

Education Week reported on the case here and here, and I blogged here in January about a dispute over legal fees.

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The U.S. Supreme Court today took up a major case about indecency on broadcast television, with the Bush administration arguing in support of government regulation of the fleeting use of expletives over the airwaves in the name of protecting children.

"Most Americans still get their information and entertainment from broadcast TV," said U.S. Solicitor General Gregory G. Garre, who was representing the government in Federal Communications Commission v. Fox Television Stations Inc. (Case No. 07-582). "Broadcast TV is extremely accessible to children because all they have to do is turn it on. ... And broadcast television is still broadcast in a way that invades the home, the place -- the one place where people typically don't expect to have uninvited, offensive ..."

He was cut off by a justice's question. But what he meant was uninvited, offensive words such as the "f-word" and "s-word," as Mr. Garre had earlier put it. (There was some promise that those words would be uttered in unexpurgated form in court today, but that never happened.)

The case stems from some on-air expletives, such as the f-word and s-word, from the mouths of celebrities such as Bono (of U2), Cher, and Nicole Richie on the "Golden Globes" and "Billboard Music Awards" shows in 2003 and 2004.

Those instances prompted the FCC to re-examine whether isolated use of "fleeting expletives" on broadcast television violated its definition of indecency. The commission decided that they did, and Fox and other broadcasters appealed in the courts. The U.S. Court of Appeals for the 2nd Circuit, in New York City, invalidated the commission's action, ruling that the change was "arbitrary and capricious" under a federal administrative procedure law.

The Supreme Court granted review, and both sides agree First Amendment free-speech principles are also involved.

Mr. Garre said that under the rules favored by broadcasters, they would be free to use expletives 24 hours a day, "going from the extreme example of Big Bird dropping the F-bomb on 'Sesame Street,' to the example of using that word during 'Jeopardy' or opening the episode of 'American Idol.' "

But the broadcast industry isn't seeking blanket permission to air such words. In fact, even its own standards generally bar their use during late-night hours, when the indecency rules don't apply. But the industry doesn't want to be subject to federal fines for the fleeting use of expletives on live television.

Carter G. Phillips, the lawyer representing Fox and other broadcasters, told the justices that "society is significantly more tolerant of these words today that it was 30 years ago."

Justice Antonin Scalia asked him, "Do you think your clients have had anything to do with that?"

Very little, Mr. Phillips responded. "Go to a baseball game, Justice Scalia," he said. "You hear these words every time you go to a ballgame."

"You do, indeed, but you don't have them presented as something that is normal in polite company, which is what happens when it comes out in television shows," Justice Scalia said. "This is a coarsening of matters that is produced by the shows. I am not persuaded by the argument that people are more accustomed to hearing these words than they were in the
past."

The briefs in the case are available at the American Bar Association's Supreme Court preview site.

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The U.S. Supreme Court today took up a teachers' union case that even several justices said left them befuddled.

At issue in Ysursa v. Pocatello Education Assocation (Case No. 07-869) is an Idaho law that prohibits school districts and other local governments from using their payroll systems to let workers deduct amounts from their paychecks for political causes, such as for teachers' unions' political action funds.

The Idaho Education Association, its Pocatello affiliate, and several other public-employee unions in the state challenged the law as an infringement of their First Amendment rights of free speech and association. The restriction would "significantly decrease the revenues available" to the state teachers' union for political activities, its executive director said in earlier proceedings in the case.

The Idaho statute "is a content-based restriction on speech which is therefore presumptively invalid," Jeremiah A. Collins, the lawyer representing the unions, said during the oral arguments this morning. (The unions' brief is here.)

Clay R. Smith, Idaho's deputy attorney general, told the justices that the case raised questions of the state's sovereignty over the operations of its political subdivisions.

The goal of the law is "to avoid either the appearance or the reality of public employer involvement in ... electoral politics," Mr. Smith said. (The state's brief is here.)

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled unanimously in October 2007 that the Idaho provision as applied to local government employers violates the First Amendment free-speech and association rights of the unions.

“This restriction on voluntary political contributions burdens political speech,” the 9th Circuit court said. “The law does not prohibit [the unions] from participating in political activities, but it hampers their ability to do so by making the collection of funds for that purpose more difficult.”

The unions' view appeared to have support from some of the justices.

Justice Ruth Bader Ginsburg, noting that the law was construed as being inapplicable to private employers, questioned the state's lawyer about whether in practice it ends up only restricting paycheck deductions for political contributions to public-employee unions.

"It seems that what is burdened by the statute is union speech," Justice Ginsburg said.

Justice John Paul Stevens asked Mr. Smith whether school districts and other local governments could allow deductions for employees' contributions to "united fund" charities.

Those wouldn't be political causes covered by the statute, Mr. Smith said.

"But why differentiate political activity from charity contributions?" Justice Stevens wondered.

But some more conservative justices appeared to side with the state.

Justice Antonin Scalia suggested that the state's differential treatment of paycheck deductions for politics "doesn't seem to me particularly discriminatory" because the beneficiary—public-employee unions—is "a narrow class that has a special benefit."

In 2007, Justice Scalia wrote the opinion for the court in Davenport v. Washington Education Association, a decision upholding a Washington state law that made it more difficult for teachers' unions to raise political funds through school district paychecks.

Several justices indicated they were struggling with how to apply the court's many First Amendment tests and precedents to the Idaho law.

"Public-forum doctrine doesn't work for me. Subsidy [doctrine] doesn't work," Justice Anthony M. Kennedy said to Mr. Smith, about two of the court's lines of free-speech analysis. "It seems to be an unconstitutional condition case. But that doesn't mean you can't prevail."

Justice Stephen G. Breyer later told Mr. Collins, the union lawyer, that he doesn't understand what "content-based regulation" means.

"I know it's all over the law, but I've never understood it and maybe since you're relying on it 15 times, you can explain it," Justice Breyer said.

Mr. Collins said, "One thing that the court has been clear on is that when a government says one form of speech will not be allowed and that will be political speech, that is treated as requiring heightened scrutiny" under the Constitution.

Justice Breyer's observation prompted Chief Justice John G. Roberts Jr. to say, "Since we're in confessional mode, I've never understood forum analysis"—another way of looking at First Amendment cases that analyzes whether a place or program has been opened up to free-speech activity.

"How you can say that this payroll-deduction system is some kind of a forum," the chief justice said. "A forum is, you know, the corner at Hyde Park or something," he added, in reference to the London park famous as a free-speech bastion.

A decision in the case is expected by next June.

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