December 2008 Archives

I've been kind of busy with the announcement of Arne Duncan as secretary of education and other things, but here are some school law developments from the past few days:

St. Louis Intervention: The Missouri Supreme Court has upheld the state's intervention in the St. Louis school district. The St. Louis Post-Dispatch reports here, and the court's ruling is here.

MyTeacherSpace: A federal district court has ruled that a Pennsylvania school district did not violate the First Amendment rights of a student teacher when it barred her from continuing to teach because of a posting on her MySpace page. The district had warned the student teacher to keep her personal Web pages free of references to students and teachers where she was doing her practicum. (Hat tip to NSBA's Legal Clips, which has this background page on the case.)

Taxes Due: A federal appeals court has rejected the latest effort by a husband and wife to win tax deductions for their children's tuition at Orthodox Jewish schools. Michael and Marla Sklar have long sought to get the deductions based on their arguments that the federal government has granted Church of Scientology members the right to deduct certain educational expenses, so they should get such benefits as well. A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, unanimously upheld a decision of the U.S. Tax Court "holding that the tuition and fee payments to the Jewish Day Schools were not deductible under any of the Sklars’ theories."

With that, I am headed for a holiday vacation. Barring any major legal decisions in education over the next two weeks, the School Law Blog will be back on Jan. 5.

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This is turning out to be a big week for education in the federal appeals courts, at least as far as cases coming up for oral arguments.

Yesterday, I was in Cincinnati to cover arguments before the full U.S. Court of Appeals for the 6th Circuit about a challenge to the No Child Left Behind Act. See my blog post here and a story on Edweek's site. (Yes, they are pretty much the same.)

Meanwhile, in Philadelphia, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit was hearing arguments yesterday in an important case about whether schools could discipline students for Internet speech. The case involves a Pennsylvania school district's discpline of a student for creating a fake MySpace profile of his principal.

The Philadelphia Inquirer reports on the arguments here, and the Legal Intelligencer reports here.

The briefs for both sides in the case, Layshock v. Hermitage School District, are available here at the site of the American Civil Liberties Union of Pennsylvania, which is representing the student. (Hat tip to Howard Bashman's How Appealing blog.)

[In related Internet-parodies-of-educators news, the ACLU of Florida filed this lawsuit Monday on behalf of a Florida charter school student who was disciplined for creating a Facebook parody of one of his teachers. The group has this press release, and the South Florida Sun-Sentinel reports here. (Thanks to How Appealing for this, too.)]

Finally, a panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, heard arguments today in a case about the distribution of Gideon Bibles in public schools. Liberty Counsel is representing the South Iron School District in Missouri, which has an equal-access policy that permits the Gideons to distribute Bibles from tables in the district's schools.

Liberty Counsel has this press release about the case. The ACLU of Eastern Missouri, which is representing the plaintiffs challenging the policy, has this page devoted to the case, which includes legal briefs and court decisions.

The 8th Circuit makes recordings of its oral arguments available, and today's case is up. Hit this link, then click on "Court Session" at left, then on "2008 December" and look for Case No. 08-1847, Lonney Roark v. South Iron R-1 School District, on Dec. 11.

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The educational and fiscal ramifications of the federal No Child Left Behind Act came under legal review today in an ornate federal appeals courtroom here in Cincinnati.

Of course, only a legal question was at issue before the full U.S. Court of Appeals for the 6th Circuit: whether a group of school districts backed by the National Education Association has a case in challenging the federal education law as an unfunded mandate.

“States and school districts are prisoners of this law,” Robert H. Chanin, the general counsel of the NEA, told 14 of the appeals court’s 16 active judges here today. The other two will participate in the outcome of the case after listening to a recording of the oral arguments.

“There are obligations that are placed on them by the No Child Left Behind Act, but the money is not enough to implement those requirements,” said Mr. Chanin, who represents the Pontiac, Mich., school district and eight other districts in Michigan, Texas, and Vermont in their challenge to the law.

Alisa B. Klein, a U.S. Department of Justice lawyer from Washington representing Secretary of Education Margaret Spellings, told the court that the federal government “doesn’t impose mandates one way or another on how a state spends its money” under the law.

She said the school districts’ argument that a provision of the law meant states and districts were not required to spend their own money to comply with the law’s mandates was untenable.

“No one thought Congress was going to pay the full cost of what the No Child Left Behind Act was meant to do,” she said.

The full 6th Circuit court agreed in May to rehear the case of Pontiac School District v. Spellings. Bush administration lawyers sought the rehearing after a three-judge panel of the 6th Circuit court ruled on Jan. 7 that the states were not on clear notice of their financial obligations when they agreed to accept federal money under the NCLB law.

Central to the case is a provision in the NCLB law that says, “Nothing in this act shall be construed to … mandate a state or any subdivision thereof to spend any funds or incur any costs not paid for under this act.”

Such language was first added to several federal education statutes in 1994, including to that year’s reauthorization of the Elementary and Secondary Education Act, of which the NCLB law is the latest version.

The teachers union’s case against the law was bolstered by a 2006 U.S. Supreme Court decision. In Arlington Central School District v. Murphy, a case dealing with a legal-fees issue under the Individuals with Disabilities Education Act, the high court reiterated in strong terms a doctrine that in spending-clause legislation, Congress must clearly express its intent to impose conditions on the grant of federal aid so the states may knowingly decide whether to accept the money.

Congress enacted the No Child Left Behind law, like the IDEA, under its spending-clause power. The 6th Circuit panel cited the Arlington Central ruling in holding that the NCLB act does not give the states clear notice of their obligations, in large part because the unfunded-mandate language sends the message that states and districts would not have to spend their own money.

That view did not appear to be getting as much traction today before the full 6th Circuit panel. Some questioned whether the unfunded-mandates provision cited by Mr. Chanin applied to NCLB’s Title I, the main source of funding for disadvantaged students.

Judge David W. McKeague suggested to Mr. Chanin that a slightly softer-worded provision on mandates in Title I “would seem to suggest Congress anticipated there may well be costs not reimbursed” for districts and states under the law.

Judge Jeffrey S. Sutton suggested to Mr. Chanin at one point that the “your linchpin is ambiguity” in the unfunded-mandates provision.

“Ambiguity suggests the agency gets to fill in the gaps,” the judge said, referring to the notion that the Education Department’s interpretation would get deference.

But the judges also questioned Ms. Klein about why Congress would have put in the unfunded-mandates provision in the manner it did.

She answered that the provision applied to sections of NCLB other than Title I that provide grants to the states.

“It keeps the Department of Education from attaching strings that would cost [states] more funds,” Ms. Klein said of the mandates provision.

There were several basic questions from the bench about the complex law, such as under what circumstances would states take over schools, and whether the federal government was dictating matters such as the frequency of testing.

The judges also noted that while the state of Connecticut has filed a lawsuit against the federal government over the NCLB law, raising some of the same arguments, no state in the 6th Circuit had joined the school districts’ suit. Those states are Kentucky, Michigan, Ohio, and Tennessee.

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The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, hears arguments Wednesday in a major legal challenge to the No Child Left Behind Act.

The court will consider a lawsuit backed by the National Education Association that argues the federal education law imposes unfunded mandates on states and school districts in conflict with its own language.

A three-judge panel of the 6th Circuit court ruled 2-1 on Jan. 7 that the states were not on clear notice of their potential financial obligations when they agreed to accept federal funding under the No Child Left Behind law. The majority ruled that state officials could “reasonably read” the law’s unfunded-mandate provision to conclude that they “need not comply with NCLB requirements for which federal funding falls short.”

But the full 6th Circuit set aside that ruling on May 1 when it agreed to the Bush administration's request to rehear the case. (I blogged about that development here and wrote about it in Education Week here.)

I'll be in Cincinnati to cover the arguments, and I'll file a report here in the blog and on Education Week's Web site.

Incidentally, The Washington Post has a package of stories today about President-elect Barack Obama's opportunities to put his stamp on the federal judiciary, and this story focuses on the 6th Circuit's tendency to rehear "en banc" certain cases when they were originally decided by panels made up of or dominated by judges who were appointed by Democratic presidents.

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The U.S. Supreme Court today declined to hear an appeal on behalf of a Michigan student who sought to distribute Christian messages to his fellow public school students as part of a school assignment.

The justices refused to review the appeal by the parents of Joel Curry, who was a 5th grader in 2003 when he sought to distribute candy-cane shaped Christmas ornaments as part of a class assignment on marketing a product. School officials approved his product, but the student then added a booklet to each ornament conveying Christian meanings about the candy cane, such as that the color red signified "God's love that sent Jesus to give his life for us on the cross," and that the shape symbolized a sheperd's staff.

After discovering the cards, the principal of the Handley School in Saginaw, Mich., met with Joel's mother and said the student would not be permitted to sell the candy canes with the cards at the student marketing event because the event was considered instructional time and the cards' religious content was inappropriate.

Joel's parents sued the Saginaw district and the principal, Irene Hensinger, alleging that Joel's First Amendment free expression rights were violated. A federal district judge ruled in 2006 that the district and the principal had violated Joel's First Amendment rights, but that the defendants were entitled to qualified immunity.

A panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled in January that the principal did not violate Joel's First Amendment free speech rights by refusing to let him distribute the religious messages. (I blogged about the 6th Circuit decision here.)

"Joel’s candy cane with the religious card attached was not simply a personal religious observance, analogous to wearing a cross, or a T-shirt with a slogan," the 6th Circuit court said. "The school’s desire to avoid having its curricular event offend other children or their parents, and to avoid subjecting young children to an unsolicited religious promotional message that might conflict with what they are taught at home, qualifies as a valid educational purpose."

In the Supreme Court appeal on behalf of Joel and his parents, Paul and Melanie Curry, the Alliance Defense Fund argued that "by treating genuine student speech as per se intolerable because of its religious viewpoint, the 6th Circuit has turned the First Amendment upside down."

In a response brief, which the justices requested after the principal initially declined to file an answer to the appeal, lawyers for Hensinger argued that the case would make a poor one for deciding the religious speech rights of public school students and that the issue should be allowed to percolate in the lower courts.

The Supreme Court's refusal without comment to hear the appeal is not a ruling on the merits of the case.

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A real hodge-podge at the end of the week:

Age-Discrimination Case Granted: The U.S. Supreme Court today granted review of a case with implications for standards of proof in certain job-discrimination cases.

In Gross v. FBL Financial Services Inc. (Case No. 08-441), the justices will examine whether plaintiffs in non-Title VII cases must present direct evidence of job bias to get a jury instruction for a so-called mixed motive liability standard. Such a standard, which applies when there are legitimate and illegitimate reasons for an adverse job action, generally makes it easier for a plaintiff to prevail.

The court had decided in a 2003 case, Desert Palace Inc. v. Costa, that direct evidence of discrimination is not required for a plaintiff to get a mixed-motive jury instruction in a case under Title VII of the Civil Rights Act of 1964. But it reserved judgment on whether that applied to other employment-discrimination statutes, such as the one at issue in Gross: the Age Discrimination in Employment Act.

Early Friends of the Court: Over at the online magazine Slate, Adam Chandler has this interesting article about how more friend-of-the-court briefs are more likely to be filed at the petition stage--that is, when a party is first asking the Supreme Court to review its case--by conservative business and social groups than by liberal ones. Chandler urges liberal groups to get involved earlier to help set the court's agenda, since some research has documented that appeals accompanied by friend-of-the-court briefs stand a better chance of getting granted.

One example of an "amicus" briefs at the petition stage by education groups would be this brief by the National School Boards Association, American Association of School Administrators, and the National Association of State Directors of Special Education in Forest Grove School District v. T.A. (No. 08-305), an important special education case raising questions about when schools must pay for private placements of students.

Searching Students' Cars: This case is a few weeks old, but a state appellate court in New Jersey has ruled that a search of a student's vehicle in the school parking lot for drugs was reasonable under the 4th Amendment.

A three-judge panel of the appellate division of New Jersey Superior Court ruled unanimously in New Jersey v. Best that the "reasonable suspicion" standard from the U.S. Supreme Court's 1985 decision in New Jersey v. T.L.O. applied to the car search, rather than a stricter "probable cause" standard."

"In light of the magnitude of the threat that narcotics in a school environment pose to the well-being of students, we have no hesitancy concluding that the T.L.O. standard, rather than probable cause, should govern searches of student vehicles parked on school grounds," the New Jersey court said in a Nov. 10 opinion.

The court stressed that its holding was limited to a search of a student's vehicle on school grounds where school officials limit and control students' ability to park there.

"We leave for another day the more difficult question of the standards to be applied when the student's vehicle is parked on a public street rather than on school grounds, or, if parked on school grounds, when no advance permission to do so is required," the court said.

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The U.S. Supreme Court took up arguments today in a case that will determine whether Title IX is the exlusive remedy for claims of sex discrimination in education.

That much we knew going into Fitzgerald v. Barnstable School Committee (Case No. 07-1125). We don't know that much more about how the case will turn out after the hourlong arguments, much of which were bogged down by threshold questions about whether the court granted the right case to decide the issue. While three or four of the justices were actively engaged in the argument, several normally active questioners, including Justices Anthony M. Kennedy, David H. Souter, and Samuel A. Alito Jr., had little or nothing to say.

I explain in full in my Web story for Education Week, which is available here. And here is my blog item from yesterday previewing the case.

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The U.S. Supreme Court hears arguments on Tuesday in a case that will determine whether Title IX provides the exclusive legal remedy for claims of sex discrimination against schools.

The appeal in Fitzgerald v. Barnstable School Committee (Case No. 07-1125) is being watched closely by civil rights groups, on one side, and school groups on the other. The question is whether Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in federally funded education programs, precludes victims from also suing under a broader federal civil rights law known as Section 1983. That law, dating from the Reconstruction era, allows plaintiffs to sue individuals who violate their constitutional or statutory rights under color of law.

The case arises from claims that a kindergarten girl was subjected to sexual harassment by a 3rd grade boy while riding the bus to school in the 2000-01 academic year. Each time the girl wore a dress to school, the boy allegedly forced her to lift her skirt, pull down her pants, and spread her legs, according to court papers.

The 4,460-student Barnstable, Mass., school district and local police investigated the charges, but the police found there was insufficient evidence to proceed with any criminal action against the 3rd grader, the parents' court papers say.

The district offered to place the girl on another bus, a proposal that dissatisfied her parents, who requested that the boy be removed from their daughter’s bus.

The school district says in its brief that because it had trouble substantiating the kindergartner’s allegations, offering to place her on another bus was a reasonable response to the alleged peer harassment.

The parents sued the district under both Title IX and Section 1983. Both a federal district court and the U.S. Court of Appeals for the 1st Circuit, in Boston, ruled against their Title IX claim and held that the Section 1983 claim was foreclosed by Title IX.

The 1st Circuit court noted in its 2007 opinion that besides itself, three other federal circuit courts have ruled that Title IX forecloses Section 1983 constitutional claims. But three other federal circuit courts have ruled that both Title IX and Section 1983 claims may both be raised in a sex-discrimination suit.

In a friend-of-the-court brief filed on the parents' side by the American Civil Liberties Union and the National Women's Law Center, the groups argue that Congress had no intention of precluding constitutional claims for sex discrimination when it enacted Title IX in 1972.

"Title IX was intended to function independently from and as a supplement to the equal-protection clause" of the 14th Amendment, the groups' brief says. "Title IX and the Constitution reach different activities and cover different actors."

In the lone friend-of-the-court brief filed on the side of the Barnstable school district, the National School Boards Assocation, the American Council on Education, and the American Association of School Administrators stress that the "Section 1983 remedy is simply unnecessary" for plaintiffs alleging sex discrimination because Title IX "provides a comprehensive and efficient remedy against schools that are deliberately indifferent to incidents of student harassment."

Interestingly, the Bush administration did not file a brief in the case, even though the federal government typically takes an active interest in Supreme Court cases that interpret federal civil rights laws.

The case is set for argument at 11 A.M. on Dec. 2. I'll file a report in the blog and in Education Week.

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