March 2009 Archives

The U.S. Supreme Court took up an age-discrimination case today with potential importance for the employment practices of schools.

The issue in Gross v. FBL Financial Services Inc. (Case No. 08-441) is whether a plaintiff suing under the federal Age Discrimination in Employment Act must present direct evidence of bias to obtain a "mixed-motive" jury instruction.

Such an instruction is potentially advantageous to plaintiffs because it shifts the burden of proof to employers to show there was a legitimate reason for an adverse job action in addition to any discriminatory ones.

The justices ruled in a 2003 case, Desert Palace Inc. v. Costa, that direct evidence is not required to get a mixed-motive jury instruction in cases brought under Title VII of the Civil Rights Act of 1964, the main federal job-discrimination law. But lower courts are divided on whether the same standard applies to the age-discrimination law.

In a lively oral argument, the justices spent much time discussing whether the various tests and different forms of evidence required in different discrimination cases were just too complicated, and whether they should use this case to clarify matters.

"Juries are smarter than judges," Justice David H. Souter said at one point, suggesting that it might be best to let them sort out the evidence of discrimination without complicated burden-shifting instructions.

"If you said to the jury, do the right thing, they'd probably come out the same way it would come out if you gave the burden-shifting instruction, I think," Souter said.

In a friend-of-the-court brief filed on the side of the employer in the case (an insurance concern accused of demoting a supervisor based on age bias), the National School Boards Association reminded the justices that age issues are ever-present, and becoming more relevant, in school employment.

"Shifting the burden to favor plaintiffs in age-discrimination cases will inhibit schools from making" such "necessary choices" as sometimes favoring "recently trained or lower-paid teachers," who just may happen to be younger teachers, the NSBA brief says.

In fact, veteran--that is, older--teachers and administrators may not take much comfort from the NSBA brief.

"School employment policies are traditionally seniority-driven," the brief says. "But given the challenges facing districts today, years of experience should not be the sole measure of an individual's performance as a teacher or administrator."

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The Obama administration has filed a brief in the U.S. Supreme Court that backs efforts to bring about greater funding for English-language learners in Arizona public schools.

The administration filed the friend-of-the-court brief in Horne v. Flores (Case No. 08-289) on the side of the state of Arizona and parents in the community of Nogales in a long-running case over how much funding the state must provide for English learners under a federal civl rights law.

In an unusally divisive split within a state government, the state and the Arizona state board of education are lined up on one side, along with the Nogales parents, in favor of providing more funding for ELL programs. On the other side are state legislative leaders and the state schools superintendent, who contend that the state legislature has provided enough funding to satisfy the federal No Child Left Behind Act, and that should be enough to meet the standards of the federal Equal Educational Opportunities Act of 1974. (Read this Education Week story for background.)

The 1974 law requires each state to take "appropriate action to overcome language barriers that impede equal participation by its students in instructional programs." But the law doesn't define "appropriate action."

The Obama administration now steps into the case on the side of the state and the parents. A brief signed by lawyers from the U.S. solicitor general's office and the U.S. Department of Education says that a federal district court was within its powers in requiring state lawmakers to develop and appropriately fund a statewide program for ELL education.

"The court did not order the State to spend any particular amount of money on ELL education; it required only that ELL funding 'shall bear a rational relationship to the actual funding needed to implement language acquisition
programs in Arizona’s schools,'” says the brief, which was filed on March 25.

The federal brief also rejects arguments from the state legislative leaders and the state superintendent that meeting NCLB's standards for English-language learners should be sufficient to meet the "appropriate action" standard of the Equal Educational Opportunities Act.

"A state’s receipt of federal funding under Title III of NCLB does not in itself demonstrate that the state is taking appropriate action to overcome language barriers under the EEOA," the U.S. brief says. "Nothing in Title III indicates an intent to displace entirely the EEOA, and there is no warrant for this court to assume Congress had such an intent."

Solicitor General Elena Kagan, who was confirmed by the Senate earlier this month, is recused from the case, the brief says. That is most likely because Kagan was until recently the dean of Harvard Law School, and the Nogales parents are represented by the Harvard Supreme Court and Appellate Clinic.

The case is scheduled for oral argument on April 20.

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Catching up with some developments of the week:

School Vouchers: The Arizona Supreme Court struck down two voucher programs as violating the state constitution's prohibition against appropriating money for private or religious schools.

The court's March 25 decision in Cain v. Horne, which concerns voucher programs for students with disabilities and for children in foster care, is here.The Arizona Republic reports here.

The decision is the latest evidence that despite voucher proponents' 2002 victory in the U.S. Supreme Court in Zelman v. Simmons-Harris, the opponents of vouchers have many state constitutional arguments to pursue.

End to Single-Sex Classes: The Mobile County, Ala., school system has agreed to stop offering single-sex classes in some of its schools, the Mobile Press-Register reports here.

The American Civil Liberties Union issued this press release about the case. The settlement agreement can be downloaded at this site.

In These Times: The New York Times had a couple of interesting school law articles this week. On Tuesday, Times Supreme Court correspendent Adam Liptak got the jump on a preview of next month's arguments in Safford Unified School District v. Redding, the case examining the strip-search of a middle school student by school officials looking for prescription drugs. Adam's site visit to the Arizona community where student Savanna Redding lives is here.

And on Thursday, the Times reported on students in Pennsylvania who sued the local prosecutor over a "sexting" case. The story raises questions about the role of school officials in the case.

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Here's a case with lessons for school administrators, especially when a school incident has grown into a national news story. And it has even greater lessons for the news media when it comes to verifying the facts about controversial incidents in schools.

At a middle school in Lewiston, Maine, in April 2007, a student placed a bag containing ham on a cafeteria table where some Muslim students from Somalia were eating lunch.

Muslims, of course, do not eat any form of pork, and the gesture offended the Somali students. They said it reminded them of an earlier incident in Lewiston in which someone rolled the head of a pig into a church where Somali refugees worshipped, according to court documents.

Administrators at Lewiston Middle School suspended the student who had placed the ham for 10 days and classified the incident as a "hate crime/bias" in the school computer.

The Lewiston Sun Journal wrote an article about the incident. But trouble began when an independent writer, Nicholas Plagman, posted his own account of the incident on a Web site called Associated Content. Plagman's account purported to be a news story, but it stretched some of the facts, such as reporting that the student had left a ham sandwich (instead of what in fact had been a ham roll) and that school administrators were developing "an 'anti-ham' response plan." It also falsely quoted Lewiston schools Superintendent Leon Levesque as saying that "ham is not a toy" and the incident was "akin to making these kids feel like they're being shot at back in Mogadishu and being starved to death."

Plagman's account caught the attention of producers of the Fox News Channel's morning "Fox & Friends" show. With some background checking, which included turning up the more trustworthy Lewiston Sun Journal account, the show's hosts commented on the incident on the air on April 24, 2007. The hosts ridiculed Levesque, in part based on the false quotes from the superintendent included in Plagman's account.

The superintendent later complained to the Fox channel, and when the producers realized that the Plagman article was faulty, they issued a retraction and apology to Levesque, court papers say.

Levesque nevertheless sued the Fox show's host and producers for libel and other claims, alleging that he was defamed by the on-air discussion.

A federal district court granted summary judgment to the defendants, holding that while the Fox show included material that was false and offensive, there was no evidence the producers and hosts acted with actual malice.

In a March 19 decision, a three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, upheld the lower court ruling.

The appeals panel unanimously agreed that the false comments attributed to Levesque were defamatory. The court called the defendants "negligent in their failure to question adequately the reliability of the Plagman article and conduct further research before attributing the outrageous quotations to Levesque."

The court was clearly sympathetic to the superintendent, but it said he failed to meet the high standard under the Supreme Court's New York Times v. Sullivan decision for proving the defendants acted with actual malice.

"While the defendants reported as true false statements, they did so after verifying the underlying facts of the April 11 incident," the appellate court said in Levesque v. Doocy. "Their vetting process was perhaps too cursory and perfunctory, but no facts indicate that the defendants purposefully avoided the truth, and we think the substantial truth of the story which they reported obviates a finding of actual malice."

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The U.S. Supreme Court today declined to hear the appeal of a California mother who objected on religious grounds to a state-run Web site designed to counter concerns about teaching evolution.

The mother, Jeanne E. Caldwell of Roseville, Calif., alleged in a lawsuit that the Web site Understanding Evolution endorses the view that the theory of evolution is compatible with religion and disapproves of views such as her own that the two are incompatible.

The Web site is operated by the University of California Museum of Paleontology and the National Center for Science Education, and was initially funded by a grant by the National Science Foundation.

Caldwell objected most to a page on the Web site titled: "Misconception: 'Evolution and Religion are Incompatible,'" which suggests among other things that "most religious groups have no conflict with the theory of evolution or other scientific findings."

Court papers filed on behalf of the mother argued that "Caldwell is of the opinion that children in the public schools should not be taught that the Christian account of origins is compatible with Darwin's evolutionary account of evolution."

Both a federal district court and the U.S. Court of Appeals for the 9th Circuit, in San Francisco, rejected Caldwell's suit. A three-judge panel of the appeals court said in an opinion last October that the mother had "no more than an abstract objection to how the university’s Web site presents the subject" of how evolution and religion may coexist. That wasn't enough to state an injury giving her standing to sue over the Web site, the court said.

The Supreme Court declined without comment to hear the mother's appeal in Caldwell v. Caldwell (Case No. 08-858). By coincidence, the lead defendant in the suit was Roy L. Caldwell, the director of the Museum of Paleontology, but who is no relation to Jeanne Caldwell.

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A school district may consider neighborhood demographics when assigning students to school, a California state appellate court has ruled.

The unanimous decision by a three-judge panel of the California Court of Appeal is a victory for the student assignment plan of the Berkeley Unified School District. And it upholds a race-conscious assignment plan that doesn't rely on any individual's student's racial background.

"To the extent that any preference is given to a student, it is on the basis of several factors relating to the collective composition of the student’s neighborhood (household income, education level, and race), not the student’s race," says the March 17 opinion in American Civil Rights Foundation v. Berkeley Unified School District.

The district's diversity plan for elementary schools divides the district into 445 planning areas, which are four- to eight-block areas that receive a diversity rating based on average household income, education level of adults, and the proportion of minority group members residing in the area.

Every student from a given planning area receives the same diversity score, regardless of the individual's race or background. The diversity scores can come into play when assigning students to schools as the district seeks to achieve certain diversity goals.

The plan was challenged under Proposition 209, the 1996 California ballot initiative that amended the state constitution to prohibit the state and local governments from granting racial preferences "to any individual or group."

The appellate court said the Berkeley plan does not grant preferences based on an individual's race, and the reference to a group preference did not apply to the neighborhood plan.

The San Francisco Chronicle reports on the ruling here.

Although this case was decided on California constitutional grounds, the Berkeley plan seems to be the kind of creative use of demographics that diversity advocates have argued would be permitted under the equal-protection clause of the 14th Amendment to the U.S. Constitution, and under the U.S. Supreme Court's 2007 ruling in Parents Involved in Community Schools v. Seattle School District No. 1. That ruling sharply curtailed the permissible uses of race by school districts in assigning students to schools.

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A federal appeals court has upheld a 2003 Texas law that requires a daily moment of silence in schools for students to "reflect, pray, or meditate."

The law amended and earlier state statute that had merely permitted school districts to observe a moment of silence and did not mention prayer as an acceptable way for students to pass the time.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, on March 16 agreed with a federal district court in rejecting a First Amendment challenge to the law.

Noting that the amended law also requires school districts to lead daily recitations of the Pledge of Allegiance, the appeals court said that the law had the valid secular purpose "to foster patriotism and provide for a period, if a student so desires, of thoughtful contemplation."

"The statute is facially neutral between religious and non-religious activities that students can choose to engage in during the moment of silence," the court said in Croft v. Governor of Texas.

The law was challenged by a Texas family who argued the mandatory daily moment of silence was an unconstituitional government establishment of religion.

The appeals court distinguished an Alabama moment-of-silence law struck down by the U.S. Supreme Court in 1985 in Wallace v. Jaffree. In that case, it was clear that the Alabama law had the purpose of advancing religion because its sponsor had stated that it was an effort to return "voluntary prayer" to the public schools, the appeals court said.

The Associated Press reports on Monday's 5th Circuit decision here.

In January, I blogged about a federal district court decision that struck down an Illinois law that required a daily moment of silence that permitted, among other activities, "silent prayer."

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The federal Voting Rights Act of 1965 affects school districts at their political foundation--the election of school board members.

A U.S. Supreme Court decision this week could make it slightly harder for minority candidates to win election to school boards. Meanwhile, a separate case the justices are taking up this term could have a bit of impact on school districts that face special "preclearance" requirements under the voting-rights law.

In a case decided on Monday, the justices ruled that law can only be used to help minorities elect their preferred candidates when the minority group members make up at least 50 percent of an electoral district.

The decision in Bartlett v. Strickland (Case No. 07-689) involved a state legislative district in North Carolina, but it also applies to single-member electoral districts in elections for school boards. Barred by the 5-4 ruling are so-called crossover districts, in which lines are drawn so that a large minority of black or Hispanic voters are expected to get help from crossover white voters to elect a minority candidate.

Writing for a plurality of the court, Justice Anthony M. Kennedy said that among the other concerns about whether the Voting Rights Act required such districts, "crossover-district claims would require courts to make predictive political judgments not only about familiar, two-party contests in large districts but also about regional and local jurisdictions that often feature more than two parties or candidates."

Thus, "courts would face the difficult task of discerning crossover patterns in nonpartisan contests for a city commission, a school board, or a local water authority," Justice Kennedy added. "The political data necessary to make such determinations are nonexistent for elections in most of those jurisdictions."

Writing for the dissenters, Justice David H. Souter said the result of the decision would be to force states and other jurisdictions to pack minority voters into such "majority-minority" districts and thus cut down on the total number of electoral districts from which minorities could--with crossover help--elect their preferred candidates.

The Bartlett case arose under Section 2 of the Voting Rights Act, which allows plaintiffs to bring lawsuits alleging that certain voting procedures or practices, including districting, dilutes minority voting strength.

One example of a Section 2 case involving schools was the recent federal district court decision in Levy v. Lexington County School District No. 3. In that Feb. 19 ruling, a judge held that the South Carolina school district's at-large system for electing school board members diluted minority voting strength in violation of the Voting Rights Act. The judge ordered the parties to come up with a remedial plan.

The big Voting Rights Act case to be heard later this term involves Section 5 of the law, under which states and local jurisdictions throughout the South and in specified other areas of the country with a history of racial discrimination in voting must submit any changes in voting plans or procedures to the federal government for approval.

In Northwest Austin Municipal Utility District v. Holder (No. 08-322), the utility district is challenging the 2006 extension by Congress of the Section 5 "preclearance" requirement for another 25 years. Many school boards across the South and elsewhere around the nation are subject to the preclearance requirement.

The case is set for argument on April 29.

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A federal district judge has issued a preliminary injunction barring a Florida school district from refusing to recognize a gay-straight student alliance.

Administrators at Yulee High School in the Nassau County school district had argued that the club could be disruptive and that its message would violate Florida education policy encouraging sexual abstinence.

Court papers indicate the district also objected to the group's proposed name: the Gay-Straight Alliance. Names such as the Tolerance Club might be more acceptable.

In the March 11 injunction, U.S. District Judge Henry Lee Adams Jr. of Jacksonville, Fla., indicated that he agreed with another federal district court in Florida, which ruled last year in favor of a gay-straight student group.

The American Civil Liberties Union of Florida, which represented the gay-straight alliance, has this press release.

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Strip-searches of students in public schools are unconstitutional in all but narrow circumstances, the federal government told the U.S. Supreme Court in a brief in an important education case to be decided this term.

The U.S. brief in Safford Unified School District v. Redding (Case No. 08-479) largely takes the side of Savanna Redding, who was a 13-year-old middle school student in 2003 when she was stripped-searched by school officials looking for prescription-strength Ibuprofen pills. No drugs were found.

The Supreme Court has agreed to hear the appeal of the Safford school district in Arizona of a federal appeals court ruling that the strip-search was an unconstitutional search under the Fourth Amendment. The full U.S. Court of Appeals for the 9th Circuit, in San Francisco, also held last year that the assistant principal who ordered the strip-search was not entitled to qualified immunity from personal liablity in the case.

The brief filed early this month by Acting U.S. Solicitor General Edwin S. Kneedler supports qualified immunity for the school official, saying that the state of the law about student strip-searches was unclear at the time.

But on the central question in the case, the United States opposes the school district.

"Strip searches are impermissible in the public schools unless [school] officials reasonably suspect not only that the student possesses contraband but also that it is hidden in a place that such a search will reveal," said the brief, which was also signed by lawyers from the U.S. Department of Education and the White House Office of National Drug Control Policy.

The brief argues that the strip-search of Redding, in which the student had to stretch out her bra and panties and shake them in front of a school nurse, was not justified because school officials had no reason to believe Redding had hidden contraband drugs in her clothing.

The government argues that under the "reasonable suspicion" standard set forth for student searches in the 1985 Supreme Court case of New Jersey v. T.L.O., school officials may extend a search beyond the student’s outer pockets and other features of clothing only when "they are responding to the violation of a rule designed to prevent immediate risk to health or safety and they possess particularized suspicion that the contraband is hidden in a location that a strip search will reveal."

The case is set for argument on April 21.

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Call it the Revenge of the School Administrator's Scorned Wife.

A New Mexico assistant principal made a "sexually explicit" phone call to his school secretary, as court papers put it. It isn't clear whether there was a romantic interest between the two, or whether the call was a form of sexual harassment.

What is clear is that the assistant principal's wife had installed a recording device on the couple's home phone. After her husband's call to the secretary, the wife played the recording for a school board member, who passed a tape along to the district superintendent.

The Hobbs, N.M., municipal school district declined to renew the annual contract of the assistant principal, David Castillo. He was offered a position as a 1st grade teacher, which he initially accepted, although he ended up taking an administrator's job in another New Mexico school district instead.

Castillo sued the Hobbs school district, various administrators, and his estranged wife, alleging employment discrimination and violations of a federal wiretap law. Both a federal district court and a federal appeals court ruled against Castillo.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit, in Denver, ruled unanimously on March 2 that Castillo's job-bias claims lacked merit because his contract was merely non-renewed, which is not akin to dismissal under New Mexico education law.

As for Castillo's claims that he should receive damages because the telephone recording and the dissemination of it violated federal wiretap law, the appeals court said the assistant principal failed to raise such claims in the district court and thus they merited no consideration at the higher court.

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The U.S. Supreme Court today refused to hear the appeal of an Arkansas school district over students' black-armband protests against a school uniform policy.

The Watson Chapel school district was seeking high court review of an appeals court ruling that said the students' protest was protected under the 1969 landmark student speech case Tinker v. Des Moines Independent Community School District.

The district implemented the uniform policy in 2006 for grades 7 through 12. That fall, several students were disciplined for wearing black armbands--the same method used by the students in Tinker to protest the Vietnam War--to express their opposition to the school dress code. There was no suggestion that the armband protest disrupted school.

Both a federal district court and the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled for the students.

The school district sought "to distinguish Tinker by emphasizing that the Tinker students protested the federal government's Vietnam war policy, whereas here the protest object was merely a school dress code," the 8th Circuit court said last September. "This distinction is immaterial. Whether
student speech protests national foreign policy or local school board policy is not constitutionally significant."

The Watson Chapel district, in its appeal to the Supreme Court, argued that an apparel-based protest to a school apparel policy should be subject to a lesser standard of review under the First Amendment.

But the American Civil Liberties Union, representing the protesting students, said in a brief that this was a straightforward case under Tinker and its "bedrock principle that students cannot be punished merely for expressing thier personal views on the school premises."

The justices declined without comment to hear the district's appeal in Watson Chapel School District v. Lowry (Case No. 08-716).

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The U.S. Supreme Court today denied the appeal of a high school football coach who was seeking the right to bow his head or take a knee when his players engage in voluntary pre-game prayers.

In the coach's case, the appeal on behalf of Marcus A. Borden of East Brunswick High School in New Jersey said the longtime head football coach did not seek to pray or join his players in pre-game prayers.

"Rather, he sought only to engage in two silent, respectful gestures: to bow his head when students pray at the pre-game dinner, and to continue to 'take a knee' with the team when they conclude the pre-game locker room meeting with a player-led prayer," said the appeal in Borden v. School District of the Township of East Brunswick (Case No. 08-482).

According to court papers, Coach Borden led or participated in prayers with his players for many years. But in 2005, school administrators told the coach he could not participate in the students' voluntary prayers anymore. After failing to get clarification on whether he could bow his head or take a knee along with the players, the coach sued the school district, alleging that its guidelines violated his First Amendment right of free speech.

Borden won at the district court level but lost before the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia. A three-judge panel ruled unanimously last April that the school district's policy was not unconstitutionally vague and that Borden's on-the-job desire to bow his head or take a knee was not speech on a matter of public concern and thus was not protected under the First Amendment. The panel also concluded that the coach's desired conduct would be an unconstitutional government establishment of religion and "hence, the school district had no choice but to prohibit it."

Borden's appeal to the Supreme Court was joined in a friend-of-the-court breif filed by the American Football Coaches Association, which called on the justices to clarify what public school coaches may do when their players initiate team prayers.

"Football and team prayer go together as naturallly as touchdowns and extra points," the association's brief said.

The justice's declined without comment to hear the coach's appeal.

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