February 2009 Archives

The U.S. Supreme Court today ruled that a city's acceptance of a monument for a public park represents government speech and thus does not implicate the First Amendment free speech rights of a group seeking to add its own monument to the park.

The court's 9-0 decision in Pleasant Grove City, Utah v. Summum (Case No. 07-665) arguably holds implications for public schools. Some groups had argued that a ruling that went the other way--for a religious sect called Summum that wanted to put a monument detailing its principles in a park in the Utah city where a Ten Commandments monument is displayed--would open thorny free speech issues for schools.

There are also implications for efforts to display the Ten Commandments in schools, although the decision hardly settles that question.

I wrote about the school implications in the case here.

Justice Samuel A. Alito Jr., in the main opinion, provides a detailed tour through the court's First Amendment "public forum" cases, including a discussion of such school cases as Perry Education Association v. Perry Local Educators' Association, a 1983 case that dealt with teachers' unions' access to school mailboxes, and Good News Club v. Milford Central School, a 2001 case involving the free speech rights of a student religious club.

Justice Alito noted that parks and school facilities can accommodate many different speakers or events under the appropriate public forum circumstances, but governments cannot easily accept all privately offered monuments.

Of interest, though, is a distinction Alito made for monuments in which many people in a community "could place the name of a person to be honored or some other private message." That brings to mind a contentious case involving a memorial project at Columbine High School in which some community members sought to put religious messages on tiles, only to be told such messages could not be included in the permanent memorial.

In the Pleasant Grove case today, six justices wrote or joined concurring opinions, several of which noted concerns about the religious nature of the monuments in the case, which has been "litigated in the shadow of the First Amendment's establishment clause," Justice Antonin Scalia noted.

But "the city can safely exhale," Justice Scalia said. "Its residents and visitors can now return to enjoying Pioneer Park’s wishing well, its historic granary—and, yes, even its Ten Commandments monument—without fear that they are complicit in an establishment of religion."

Justice David H. Souter, however, warned that cities and other governments must take pains to make sure religious monuments don't turn into state endorsements of religion.

"If the monument has some religious character, the specter of violating the Establishment Clause will behoove [the government agency] to take care to avoid the appearance of a flat-out establishment of religion, in the sense of the government’s adoption of the tenets expressed or symbolized," Justice Souter said.

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The U.S. Supreme Court today ruled that a state's restriction on school district and other local government employee payroll deductions for politics does not violate the free speech rights of unions.

The justices ruled 6-3 in a case from Idaho involving that state's Voluntary Contributions Act, which prohibits school districts and other local governments from using their payroll systems to let workers voluntarily deduct amounts from their paychecks for political causes, such as for the unions’ political action funds.

"Idaho’s law does not restrict political speech, but rather declines to promote that speech by allowing public employee checkoffs for political activities," Chief Justice John G. Roberts Jr. wrote for the majority in Ysursa v. Pocatello Education Association (Case No. 07-869). "Such a decision is reasonable in light of the state’s interest in avoiding the appearance that carrying out the public’s business is tainted by partisan political activity."

The chief justice's opinion was joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito Jr. Justice Ruth Bader Ginsburg concurred in the outcome of the case.

Justice Stephen G. Breyer filed an opinion saying he agreed with some of the chief justice's reasoning, but that he believed the case should be sent back to the lower courts for clarification of certain matters.

Justices John Paul Stevens and David H. Souter each filed dissenting opinions.

"Because it is clear to me that the restriction [on payroll deductions] was intended to make it more difficult for unions to finance political speech, I would hold it unconstitutional in all its applications," Justice Stevens said.

At least two other states--Ohio and Utah--have similar laws that have also faced court challenges, typically led by the teachers' unions. The Supreme Court's decision could lead to an increase in efforts in the states to restrict the power of public-employee unions.

The National Right to Work Legal Defense Foundation, a Springfield, Va.-based group that filed a friend-of-the-court brief in the case on the side of Idaho, issued this press release praising the court's ruling.

The Associated Press reports on the decision here.

I wrote about the oral arguments and background of the case here.

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Today is the 40th anniversary of the U.S. Supreme Court's landmark ruling on the free speech rights of secondary school students.

The court decided Tinker v. Des Moines Independent Community School District on Feb. 24, 1969. The justices held 7-2 that students had a First Amendment right to wear black armbands in school to protest the Vietnam War as long as school was not substantially disrupted.

Writing for the majority, Justice Abe Fortas wrote that students (as well as teachers) do not "shed their constitutional right to freedom of speech or expression at the schoolhouse gate."

Time magazine wrote at the time that "the court made it plain that it was approving only demonstrations that do not sabotage the normal school routine."

About four years ago, I spent a couple of days with John and Mary Beth Tinker, who were among the Des Moines students who wore the black armbands to their schools and who with their parents challenged the school district's prohibition of their armband protests. I wrote this story about the Tinkers' return to Iowa and a visit to a Des Moines school to disuss their case and its legacy.

The American Civil Liberties Union, whose Iowa branch represented the Tinkers in 1969, has this news release about the 40th anniversary of the decision.

Meanwhile, C-SPAN examined the Tinker case on its "America and the Courts" series last Saturday. The hourlong program includes an interview with Mary Beth Tinker.

At the Student Press Law Center's site, American University law professor Jaime Raskin discusses the case in the organization's February podcast.

And in the Des Moines Register today, SPLC Executive Director Frank D. LoMonte writes this in a guest column: "Regrettably, it is hard to know whether to mark Tinker's anniversary with a birthday party or a wake. Although Tinker remains the law of the land, reaffirmed as recently as 2007 by eight of nine Supreme Court justices, its protections have been hollowed out by later court rulings and the disregard of school administrators."

The 2007 decision referred to by LoMonte is Morse v. Frederick, in which the court ruled that a student who displayed a "Bong Hits 4 Jesus" sign at a high school event was not protected by the First Amendment because school officials had the right to control drug-related expression in schools. Nevertheless, a majority of the justices did reaffirm Tinker's basic principles.

In April, Ms. Tinker will address the National High School Journalism Convention about the case.

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The U.S. Supreme Court on Monday announced the dates for oral arguments in three school cases. The justices will hear arguments in April in cases dealing with English-language learners, student searches, and special education.

Here are the dates and case summaries:

Monday, April 20,11 a.m.
Horne v. Flores and Speaker of the Arizona House v. Flores (Case Nos. 08-289 and 08-294)
In these consolidated cases, the Supreme Court will hear an appeal from Arizona's superintendent of public instruction, Tom Horne, and state legislative leaders of lower-court rulings that the state was not providing enough funding for English-language learners. I reported on the court's acceptance of the case in Education Week here and in the blog here.

Tuesday, April 21, 10 a.m.
Safford Unified School District v. Redding (No. 08-479)
In this case, the court will examine whether a strip-search of an 8th grader by school officials looking for ibuprofen pills was an unreasonable search under the 4th Amendment. I reported on the case in this Education Week story (which leads with news involving some other school cases) and in the blog here.

Tuesday, April 28, 10 a.m.
Forest Grove School District v. T.A. (No. 08-305)
The court will decide whether parents in a dispute with a school district over their child's special education plan may win tuition reimbursement for a private school school placement when the child has never received special education services from the public schools. I reported on it in Education Week here and in the blog here (the same stories or blog posts as the Safford case).

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The U.S. Supreme Court today declined to hear the appeal of a Kentucky student who challenged a school policy that he believed barred him from speaking out against homosexuality.

The case stems from a contentious battle in Boyd County, Ky., over gay issues in the schools, starting with a group that successfully fought to establish a gay-straight student alliance at a high school.

That fight led to the adoption of a high school code of conduct that prohibited harassment of students on the basis of sexual orientation. Also, the 3,300-student Boyd County district was required to conduct mandatory anti-harassment training for all students. (Education Week reported on the controversy here.)

Timothy A. Morrison II, who was a student at Boyd County High School in 2004-05, objected to the code and the diversity training, arguing that it chilled his First Amendment speech right to spread a message that homosexuality was wrong.

Both a federal district court and the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled for the school district. A panel of the 6th Circuit ruled 2-1 last April that Morrison was never disciplined under the code and thus suffered no actual legal injuries. The code was later amended.

The justices declined without comment to hear the former student's appeal in Morrison v. Board of Education of Boyd County (Case No. 08-701).

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Imagine you are a high school principal and auditors from the state education department are visiting. You want everything to go smoothly, right?

Well, imagine next that on the day the auditors are visiting, there's a small fire in one of your classrooms. The fire is quickly doused. But next, as the auditing team and a teacher are walking across the school campus, someone shoots BBs from a pellet gun toward them, hitting one of the state officials. Finally, at a Black History Month ceremony in the auditorium, where state officials are present, a fight breaks out between two students.

It sounds like something that might happen to Principal Seymour Skinner on "The Simpsons." But this nightmare scenario was all too real for Henry Simpson, who was principal of Williams-Sullivan High School in Durant, Miss., on that day, Feb. 24, 2006.

It got worse for Simpson a few days later when the superintendent of the Holmes County school system sent the principal a letter informing him that he was fired. The grounds were "failure to maintain order, ensure safety for faculty, staff and students, maintain instructional integrity and [Simpson's] failure to follow board policy and the law on reporting incidents in a timely manner.”

The principal challenged his termination, saying the superintendent overreacted after one particularly bad school day. But the superintendent and the school board cited Simpson's alleged failure to report the incidents up the chain of command. District officials learned of the incidents from someone in the state education department. (Simpson said in court papers that he tried to notify the superintendent about the pellet-gun incident that day but couldn't get in touch with him.)

In a Feb. 10 ruling, the Mississippi Court of Appeals upheld the principal's dismissal. The court noted that not only did Simpson fail to inform the superintendent's office of the pellet-gun incident, the principal apparently did not even learn from his own faculty about the classroom fire until he read about it in the newspaper.

"While Simpson relies on his ignorance of the events as a defense, we agree that it was his responsibility as the principal to know what happened at his school," the court said in Simpson v. Holmes County Board of Education.

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This past weekend, Yale Law School examined a student speech case that has attracted wide notice in public education.

I wasn't at the conference titled "The Future of Student Internet Speech: What Are We Teaching the Facebook Generation?” But the Yale Daily News reported Tuesday that the case "pitting Connecticut public school administrators against a high school student’s personal blog took center stage" at the conference. (Hat tip to How Appealing.)

The case is Doninger v. Niehoff, which has been bouncing around from the U.S. District Court in Connecticut to the U.S. Court of Appeals for the 2nd Circuit, in New York City, and back to the district court.

I blogged about last year's 2nd Circuit ruling in the case here. The court held that a student's off-campus blog remarks created a "foreseeable risk of substantial disruption" at her high school, and thus she was not entitled to a preliminary injunction reversing her discipline.

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

In a controversy over the scheduling of a social event at Lewis S. Mills High School in Burlington, Conn., Doninger wrote in an entry in her public blog at the site livejournal.com that "jamfest is cancelled due to douchebags in central office" and that readers should contact the superintendent "to piss her off more."

The appeals court said in its May 2008 decision that the blog posting "directly pertained" to events at the high school, and the student's intent in writing it was to encourage her fellow students "to read and respond."

Last month, a U.S. District Court judge had a followup ruling in the case on issues that went beyond the initial request for an injunction. Judge Mark R. Kravitz of New Haven granted summary judgment to the school district on most issues.

"If courts and legal scholars cannot discern the contours of First Amendment protections for student Internet speech, then it is certainly unreasonable to expect school administrators ... to predict where the line between on- and off-campus speech will be drawn in this new digital era," Judge Kravitz said in his Jan. 15 opinion.

The Citizen Media Law Project has this Web page with lots of background and links for the case.

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A special federal court ruled today that there is no persuasive evidence for a link between childhood vaccines and autism.

The conclusions came in three test cases heard by special masters of the U.S. Court of Federal Claims, a special court in Washington with jurisdiction over certain suits against the federal government. Since 1987, the court has dealt with claims seeking compensation for injuries stemming from certain vaccines.

Many parents believe that thimerosal-containing vaccines and the vaccine for measles, mumps, and rubella (MMR) are a cause of autism in their children. The debate has been followed by educators, with most scientific research failing to find such a link.

As the special master in one of the test cases concluded in today's ruling: "After careful consideration of all of the evidence, it was abundantly clear that petitioners’ theories of causation were speculative and unpersuasive."

The Court of Federal Claims decisions are available at this link. The court also has this background page about its "omnibus autism proceeding."

The Associated Press has this story about today's decisions. In 2007, the newspaper Legal Times published this background story on the litigation.

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Today is the anniversary of the death of Lawrence "Larry" King, the 15-year-old Oxnard, Calif., youth who was shot and killed in school, allegedly by a classmate offended by King's homosexuality and effeminate demeanor.

The Ventura County Star newspaper reported on Wednesday that the student charged in King's death is a follower of "racist skinhead philosophy," according to a court document filed recently by prosecutors.

"According to prosecutors, murder suspect Brandon McInerney sat behind King in a computer lab class on Feb. 12, 2008, didn’t do anything for 20 minutes, and then without saying a word fired one shot into the back of King’s head," the Star reported. "As the teen collapsed to the floor, McInerney stood up, looked around at his astonished classmates and delivered a 'second, coup de grâce' shot into King’s head, prosecutors allege."

McInerney, 15, has been charged as an adult with first-degree murder, a hate crime, and discharging a firearm, the Star reports. The defendant's lawyers are fighting the decision to try him as an adult, the newspaper says.

The Los Angeles Times posted this story last night about the latest developments in the case.

Last July, Newsweek magazine published this cover story about the case, titled "Young, Gay and Murdered."

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The Miami-Dade County, Fla., school board did not violate the First Amendment when it removed a children's book about Cuba from the shelves of school libraries, a federal appeals court has ruled.

A panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, ruled 2-1 to overturn the ruling of a federal district judge. The majority and dissenting opinions total 177 pages in the case about a book that is only 26 sentences long.

The book is ¡Vamos a Cuba!, or A Visit to Cuba, part of a series of books about countries for 4- to 8-year-old readers.

In 2006, a Miami-Dade father objected to the presence of the book in his daughter's elementary school because of inaccuracies and because the book's descriptions about daily life, such as that "people in Cuba eat, work, and go to school like you do," ignored the realities of the Communist regime under leader Fidel Castro.

A school district review committee and the then-superintendent rejected the parent's request to remove the book. But the Miami-Dade school board voted 6-3 to remove the Cuba book, along with others in the A Visit to ... series.

That decision was challenged in a lawsuit by the American Civil Liberties Union of Florida as a violation of local residents' First Amendment rights to free speech. A federal district court issued a preliminary injunction barring the removal of the book.

But in its Feb. 5 decision in ACLU of Florida v. Miami-Dade School Board, the 11th Circuit court panel rejected arguments that board members were motivated by impermissible viewpoint discrimination in voting to remove the book.

"The record shows that the board did not simply dislike the ideas in the Vamos a Cuba book," said the majority opinion by Judge Ed Carnes. "Instead, everyone, including both sides’ experts, agreed that the book contained factual inaccuracies."

Judge Carnes also said "overwrought rhetoric about book banning has no place here. ... The term does not apply where a school district, through its authorized school board, decides not to continue possessing the book on its own library shelves."

Writing in dissent, Judge Charles R. Wilson said a school board may not suppress viewpoints in a book "when the educational content of the book is
otherwise innocuous."

"The record provides palpable support for the district court’s conclusion
that School Board members banned the book not because of inaccuracies per se but because the book failed to make a negative political statement about contemporary Cuba," Judge Wilson said.

The Miami Herald reports on the decision here.

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A federal appeals court heard arguments this week over a Texas law requiring a daily moment of silence in schools.

The statute calls for a daily one-minute period in which "each student may, as the student chooses, reflect, pray, meditate, or engage in any other silent activity that is not likely to interfere with or distract another student."

A federal district judge in Dallas upheld the law, ruling last year that despite the mention of prayer as an option, the statute had the secular purpose of providing "a period of time for the full panoply of thoughtful contemplation."

A Carrollton, Texas, family that challenged the law as a violation of the First Amendment's prohibition against government establishment of religion appealed the district court ruling to the U.S. Court of Appeals for the 5th Circuit, in New Orleans.

A panel of that court heard arguments on Feb. 3, as the Associated Press reports here.

The Texas attorney general's office filed this brief in defense of the law. I couldn't find an online link to the brief for the family challenging the law.

The 5th Circuit provides a link to a recording of the oral arguments in the case, Croft v. Governor of Texas, at this page.

Last month, a federal district judge in Chicago struck down an Illinois law requiring a moment of silence in schools. I blogged about that decision here.

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A Missouri school district did not violate the First Amendment when it prohibited students from displaying Confederate flags, a federal appeals court has ruled.

A three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled unanimously in favor of the Farmington school district on Jan. 30.

"The record in this case contains evidence of likely racially motivated violence, racial tension, and other altercations directly related to adverse race relations in the community and the school," the court said in B.W.A. v. Farmington R-7 School District. "Because the school could reasonably forecast a substantial disruption, the administration did not violate the First Amendment by banning the flag."

The district barred Confederate symbols after incidents that included white students surrounding a black student in a confrontation at Farmington High School, and a skirmish at a basketball game in which two Farmington High players allegedly used racial slurs against black players on the opposing team.

The policy was challenged by students who were disciplined for wearing hats and shirts with Confederate flags or other symbols. Amid controversy over the policy, one student was disciplined for wearing a T-shirt that said, "The South was right, Our school is wrong."

The 8th Circuit court's ruling is consistent with other federal appeals courts to have addressed the issue. The courts have generally ruled that where there have been racial disruptions in school, Confederate symbols may be prohibited. Last year, a panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, issued such a ruling, which the full 6th Circuit declined to rehear last month over the dissent of one member. I blogged about the panel's ruling here, and the full court's action here.

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