May 2009 Archives

From guest blogger Erik W. Robelen:

President Barack Obama today nominated federal appeals court Judge Sonia Sotomayor to serve on the U.S. Supreme Court. If approved by the U.S. Senate, she would be the first Hispanic and the third woman to serve in the post, replacing Justice David H. Souter, who recently announced plans to step down.

Judge Sotomayor, 54, has weighed in on a number of federal cases relating to education, including as the federal district court judge in the case of Bartlett v. New York State Board of Examiners. In her decision for the U.S. District Court for the Southern District in New York, she ruled that a law school graduate with dyslexia was entitled to extra time in taking the bar exams.

Just this spring, in Garcia v. Yonkers School District, she joined two fellow justices on the U.S. Court of Appeals for the Second Circuit in unanimously reversing an award of legal fees to students in a case in which those students challenged their suspension for walking out of school to join a budget protest (see previous post). She also recently weighed in on a case related to the Individuals with Disabilities Education Act in Somoza v. New York City Department of Education.

Judge Sotomayor has a long legal track record as a federal judge. She became a U.S. district court judge in 1992 and then a justice on the U.S. Court of Appeals for the Second Circuit in 1998, named by President Bill Clinton.

A press release issued by the White House described Sotomayor's educational background this way:

Most importantly, at an early age, her mother instilled in Sotomayor and her brother a belief in the power of education. Driven by an indefatigable work ethic, and rising to the challenge of managing a diagnosis of juvenile diabetes, Sotomayor excelled in school. Sotomayor graduated as valedictorian of her class at Blessed Sacrament and at Cardinal Spellman High School in New York. She first heard about the Ivy League from her high school debate coach, Ken Moy, who attended Princeton University, and she soon followed in his footsteps after winning a scholarship.

She went on to graduate from Princeton University in 1976 and earn her law degree from Yale University in 1979.

In announcing her selection, President Obama said Judge Sotomayor has “a depth of experience and a breadth of perspective that will be invaluable as a Supreme Court Justice.”

No doubt, we’ll be seeing lots of statements today by various groups weighing in on the president’s pick. For its part, the National Urban League applauded the choice, calling her “an eminently qualified judge.” She’s sure to get plenty of scrutiny during the confirmation process: In his formal statement on the appointment, Senate Minority leader Mitch McConnell, R-Ky., said, “Senate Republicans will treat Judge Sotomayor fairly. But we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences.”

Photo: Alex Brandon/AP

Posted by Erik Robelen at 11:49 AM | Permalink | 2 Comments | TrackBacks (0)

A federal appeals court on Monday revived the employment-discrimination lawsuit of a school district worker who alleges she was demoted for showing loyalty to her ousted supervisor.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, unanimously overturned a summary judgment for the Washoe County, Nev., district in the case of Kathleen Nichols, who was an administrative assistant to the district's general counsel.

According to court papers, when the general counsel, Jeffrey Blanck, got into hot water with the district superintendent, Nichols was transferred to a job in the human-resources department. As the school board weighed whether to dismiss Blanck, other senior administrators perceived that Nichols was showing loyalty to the general counsel. For example, she sat next to him at a board meeting where his fate was being discussed, and after the board dismissed Blanck, she relayed some information to him by phone.

Nichols' pay was frozen and she was encouraged to retire, which she did at a reduced benefit level, her suit alleges. She sued the district and some administrators, alleging that her First Amendment right to associate with Blanck was violated by the district's actions.

A federal district court ruled for the district, holding that Nichols was a confidential employee vulnerable to a patronage dismissal without regard for her First Amendment rights.

Under the "patronage-dismissal doctrine," government employees can sometimes be legally dismissed without regard to First Amendment concerns, such as when an assistant prosecutor decides to run against his boss, the elected prosecutor.

But in its opinion in Nichols v. Dancer, the 9th Circuit court concluded that the doctrine does not apply in this case.

"Because Nichols was terminated for a perceived lack of personal loyalty, rather than political loyalty, we conclude that the patronage-dismissal doctrine does not apply to her termination," the court said.

The 9th Circuit ordered the district court to re-examine Nichols' suit under cases governing when speech and association by public employees merit First Amendment protection.

Posted by Mark Walsh at 12:11 PM | Permalink | No Comments | TrackBacks (0)

Members of a Virginia school board were entitled to qualified immunity from a lawsuit alleging that they illegally barred a newspaper reporter from the grounds of a public school, a federal appeals court has ruled.

The ruling by a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., came in the case of a community newspaper reporter, Earl F. Cole, who was barred from Buchanan County schools after several incidents, including one where he entered an elementary school and photographed students without reporting to the principal's office. Some community members also expressed concerns that the reporter hung around outside schools taking photos of students.

According to court papers, the reporter contended the banishment was retaliation for a story about a board member who sent his child to a school outside the district he represented, which was documented by a photo Cole took of the board member dropping the child off at the out-of-district school.

A federal district court had ruled that the board members were not immune from the suit because Cole had established that the board’s actions violated his First Amendment rights and that the infringed rights were clearly established.

But in its May 14 opinion in Cole v. Buchanan County School Board, the 4th Circuit panel held unanimously that the school board "has wide latitude in making determinations about access to school grounds. Such broad discretion is necessary for the board to carry out its mandate to protect students and ensure the proper functioning of the educational system."

The board members had information about the complaints raised over Cole's activity at the schools, and "a reasonable board member may well have believed it was his or her duty to ban Cole from school grounds in order to protect both the safety of the students and the integrity of the educational process," the court said.

The appeals court stopped short of deciding whether Cole's First Amendment free speech or press rights were violated, although it expressed skepticism that they were. For example, Cole could still interview students and officials off school property, the court said.

UPDATED: This post was updated to reflect that the case involves a Virginia school board, not a North Carolina one as originally written.

Posted by Mark Walsh at 4:36 PM | Permalink | 1 Comment | TrackBacks (0)

A school district was not liable for a teacher's alleged sexual harassment of a female student, despite some past red flags about the teacher's behavior, a federal appeals court ruled.

A three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, held that the Mitchell, S.D., school district wasn't liable under Title IX because no appropriate school official had knowledge of the harassment and the district did not act with deliberate indifference when it learned of the allegations.

The case concerns a high school American government teacher who allegedly took an unusual interest in a female student's anorexia, asking her to bring pictures of herself in skimpy clothing so he could gauge her condition. The teacher also allegedly caressed the student's shoulders on occasion and once made a comment about her "knockout body."

The girl and her parents eventually reported the teacher's behavior to the district's superintendent, and the teacher was fired. In a lawsuit raising Title IX and other claims, the family sought to hold the school district responsible for the teacher's actions.

The suit alleged that two principals who supervised the American government teacher had received reports of sexual harassment by him. But the appeals court said the past complaints were vague, with one parent refusing to provide details such as which teacher he was complaining about.

The court also held that another teacher and a guidance counselor who had received reports about the American government teacher's harassment were not appropriate persons who had authority to take corrective actions.

"While we in no way condone [the teacher's] behavior, we find [the student's] arguments unavailing," the 8th Circuit court said in Plamp v. Mitchell School District.

Posted by Mark Walsh at 5:58 PM | Permalink | 1 Comment | TrackBacks (0)

A federal district judge has approved a consent decree in which a Florida school district agrees to end school-sponsored religious practices, including prayers and baccalaureate services.

"School officials shall neither offer nor participate in a prayer during or in conjunction with a school event," says one of many requirements set forth in the consent decree approved May 6 by U.S. District Judge M. Casey Rodgers of Pensacola, Fla.

The decree came in a lawsuit filed by the American Civil Liberties Union of Florida on behalf of two high school students against the Santa Rosa County school district.

The decree also bars any school official from promoting his or her personal religious beliefs in class or at school events.

The ACLU of Florida has this press release about the case.

Posted by Mark Walsh at 4:33 PM | Permalink | No Comments | TrackBacks (0)

A decision last Friday by a federal district judge in California in a lawsuit over a teacher's comments in the classroom is getting a lot of attention. It was even discussed on "The View" today.

Judge James V. Selna of Santa Ana, Calif., ruled that a teacher's classroom statement that creationism is "superstitious nonsense" violated the rights of a student in the teacher's Advanced Placement European history course.

The statement by teacher James Corbett "primarily sends a message of disapproval of religion or creationism," Judge Selna said in his May 1 opinion, and that violates the First Amendment right of student Chad Farnan to be free from government establishment of religion.

What is getting less attention from the somewhat disjointed 37-page opinion is how many other of the teacher's challenged statements the judge held did not violate the establishment clause.

The lawsuit on behalf of Farnan and his parents, filed by the Murrieta, Calif.-based group Advocates for Faith & Freedom, claimed that Corbett had a pattern of expressing views that "are derogatory, disparaging, and belittling regarding religion and Christianity in particular." The suit cited statements by Corbett on the role of religion for peasants in the Middle Ages, the Boy Scouts' requirement that members profess a belief in God, abstinence-only sex education policies, and others.

Judge Selna said most of the statements either didn't raise any Establishment Clause concerns or that the teacher deserved the benefit of the doubt because he may have using them to teach something related to European history or deductive reasoning.

The "superstitious nonsense" comment, however, went too far, the judge said. "The court's ruling today reflects the constitutionally-permissible need for expansive discussion even if a given topic may be offensive to a particular religion or if a particular religion takes one side of a historical debate," Judge Selna said, but it "also reflects that there are boundaries."

The judge ruled that the Capistrano Unified School District could not be held liable for the teacher's remarks. He granted summary judgment to the Farnans regarding the "superstitious nonsense" comment and judgment to the teacher and school district on all other counts of the suit.

The suit sought only nominal damages and a court order barring the teacher from making remarks hostile to religion. It's not clear from the opinion just how much relief the judge granted. According to this Associated Press story, Advocates for Faith & Freedom plans to ask the judge to order teacher training and to monitor Corbett's remarks in class.

The California Teachers' Association filed these court papers in the case, raising concerns about the First Amendment rights of teachers.

Advocates for Faith & Freedom also has posted these court papers from the school district answering the suit.

Posted by Mark Walsh at 3:54 PM | Permalink | 5 Comments | TrackBacks (0)

With reports that Justice David H. Souter intends to retire from the U.S. Supreme Court after 19 years, it is time to take a quick look at his legacy on education issues.

Souter has been a reliable liberal vote--in dissent from the court's conservative majority--on such major recent cases as voluntary school racial diversity and student free speech, as well as on issues such as school desegregation and protecting students from sexual harassment. But Souter has done his most prolific opinion writing on cases involving government aid to religion or religion in the public schools.

Here are some highlights:

Lee v. Weisman: In this 1992 decision, Souter joined the 5-4 majority that ruled clergy-led graduation prayers at a middle school to be a violation of the First Amendment's prohibition against government establishment of religion. In his lengthy concurrence, Souter wrote this:

Religious students cannot complain that omitting prayers from their graduation ceremony would, in any realistic sense, "burden" their spiritual callings. To be sure, many of them invest this rite of passage with spiritual significance, but they may express their religious feelings about it before and after the ceremony. They may even organize a privately sponsored baccalaureate if they desire the company of like-minded students. Because they accordingly have no need for the machinery of the State to affirm their beliefs, the government's sponsorship of prayer at the graduation ceremony is most reasonably understood as an official endorsement of religion and, in this instance, of theistic religion.

Board of Education of Kiryas Joel Village School District v. Grumet: In this 1994 ruling, Justice Souter wrote the opinion for a majority that struck down a New York State law establishing a special school district to serve children with disabilities in a community of Hasidic Jews. Souter wrote:

In this case, we are clearly constrained to conclude that the statute before us fails the test of neutrality. It delegates a power this Court has said "ranks at the very apex of the function of a State," Wisconsin v. Yoder, 406 U.S. 205, 213 (1972), to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism. It therefore crosses the line from permissible accommodation to impermissible establishment.

Zelman v. Simmons-Harris: In this 2002 decision, Justice Souter wrote a bitter dissent from the majority's decision to uphold an Ohio program that created a pilot voucher program for Cleveland in which parents of that city's schoolchildren could choose to send them to private religious schools at public expense. Souter wrote:

If the divisiveness permitted by today's majority is to be avoided in the short term, it will be avoided only by action of the political branches at the state and national levels. Legislatures not driven to desperation by the problems of public education may be able to see the threat in vouchers negotiable in sectarian schools. Perhaps even cities with problems like Cleveland's will perceive the danger, now that they know a federal court will not save them from it. ... True, the majority has not approved vouchers for religious schools alone, or aid earmarked for religious instruction. But no scheme so clumsy will ever get before us, and in the cases that we may see, like these, the Establishment Clause is largely silenced. I do not have the option to leave it silent, and I hope that a future Court will reconsider today's dramatic departure from basic Establishment Clause principle.

These aren't Souter's only education opinions. And he may not have written his last one. The court heard arguments in three school cases during its final argument session of the term this month, and will issue opinions in those cases by the end of June. We may hear from Justice Souter at least one more time.

Posted by Mark Walsh at 7:34 AM | Permalink | 1 Comment | TrackBacks (0)