September 2009 Archives

Last week I wrote an item about several hot-button education appeals pending review in the U.S. Supreme Court. But I noted that none of those cases, on the Pledge of Allegiance, Confederate T-shirts, book challenges, and religious messages at graduation, had any guarantee of being granted full review by the justices.

For the moment, there are no cases directly involving K-12 schools on the docket for the new Supreme Court term that officially opens on Oct. 5. Nevertheless, there are several granted cases that hold potential implications in education.

Religious Symbols in the Public Square
Salazar v. Buono (Case No. 08-472) is one of those establishment clause cases, like the Ten Commandments cases and the Summum case from last term, that bear watching even though the setting is not a school.

At issue in the case is a cross in the Mojave National Preserve in California that is the latest version of one erected as a monument to Americans who died in World War I. The case is complicated by issues of standing and a complex series of actions by Congress to rescue the cross from being removed as an unconstitutional government establishment of religion. The Washington Post on Tuesday had this excellent on-site story about the case.

One reason the education community should keep an eye on the case is that, like all other establishment clause cases in the Supreme Court, this one has attracted the participation of groups on the left and right that battle over all forms of religion in the public schools. Groups supporting the desert cross argue in briefs why the court can distinguish its long line of cases about religious displays or prayers in public schools from the case before them. Groups siding with the challenge to the cross argue in favor of broad rules of "standing" permitting challenges to religious practices in schools and on government property.

The case is set for argument on Oct. 7.

Life Sentences for Juvenile Offenders
In two cases from Florida, the court has agreed to decide whether sentencing juvenile offenders to life without parole for crimes other than homicide violates the Eighth Amendments prohibition against cruel and unusual punishment.

The cases involve an offender who was 13 when he was sentenced to life for the robbery and rape of an elderly woman, and an offender who committed armed robbery at age 16 and was sentence to life without parole when he violated his probation at age 17. The cases are Sullivan v. Florida (No. 08-7621) and Graham v. Florida (No. 08-7412).

The cases will be heard four years after the Supreme Court, in Roper v. Simmons, ruled that the death penalty for crimes committed by offenders under age 18 violated the Eighth Amendment, in part because of the diminished moral culpability of juveniles.

A group of prominent educators, including Geoffrey Canada of the Harlem Children's Zone, has filed a friend-of-the-court brief on the side of the juvenile offenders, which argues that "sentencing juveniles to life without parole for non-homicide crimes committed during their youth wrongly ignores children's inherent potential to mature and rehabilitate, and cruelly deprives adolescents of any opportunity to utilize those qualities to one day become contributing members of society."

The cases are set for argument on Nov. 9.

Attorneys' Fees in Civil-Rights Cases
In a case stemming from litigation over Georgia's foster-care system, the justices will decide whether lawyers who press such institutional-reform cases may be awarded extra money on top of normal attorneys' fees when their efforts bring about major changes.

At issue in Perdue v. Kenny A. (No. 08-970) is a federal district judge's decision to award an enhancement of $4.5 million on top of a $6 million attorneys' fee award to lawyers who brought a class action over the state's system for handling children in foster care. The judge concluded the enhanced fees were justified because the lawyers provided exceptional representation and forced significant changes in the system through a consent decree.

The National School Boards Association has filed a friend-of-the-court brief on the side of the state of Georgia. The NSBA notes that school systems are often at the center of institutional-reform litigation, and it argues that the enhanced attorneys' fee structure authorized by the lower courts "will result in scarce resources being redirected toward attorneys and litigation, and away from improving student achievement."

Civil rights groups, meanwhile, have filed briefs arguing that Congress intended laws that authorize attorneys' fees for prevailing parties to permit judges to order enhanced awards in exceptional circumstances.

The case will be argued Oct. 14.

Student Loans
In an important case for higher education and the student loan business, the justices will hear the appeal of a lender whose college loans totaling $13,250 to an Arizona man were discharged by a bankruptcy court. Federal law says student loans cannot be written off in bankruptcy except in cases of "undue hardship" proven in an adversary proceeding, and there was no such proceeding in the Arizona man's case.

A federal appeals court ruled last year that the lender had received notice of the debtor's plan to discharge some of his student loan obligations in a Chapter 13 bankruptcy proceeding and did not object to it.

The appeal is United Student Aid Funds v. Espinosa (No. 08-1134). The case has been set for argument on Dec. 1.

Posted by Mark Walsh at 2:57 PM | Permalink | 1 Comment | TrackBacks (0)

The U.S. Supreme Court today added 10 more cases to the docket for its 2009-10 term, but no education cases were among them.

The court met in private on Tuesday to discuss appeals that had piled up over the summer. Among the cases up for potential grant from that list were ones involving the Pledge of Allegiance and Confederate flag T-shirts in schools. (See my blog post about pending hot-button education cases here.)

Today's orders list basically dealt with the handful of grants from the big summer conference list. No appeals were denied today, although come Monday most of the hundreds of cases from the summer list probably will meet that fate.

A couple of cases granted today bear a quick mention here.

One is Lewis v. Chicago (Case No. 08-974), which involves a statute-of-limitations question under Title VII of the Civil Rights Act of 1964. A group of African-American firefighters filed a lawsuit challenging an employment test as having a disparate impact on minority applicants. But the city used the results of the test for different rounds of hiring over several years. A federal appeals court said the minority applicant's suit was time-barred because it was filed more than 300 days after the city first announced the test results. The new case is almost Ledbetter v. Goodyear meets Ricci v. DeStefano.

The other is McDonald v. Chicago (No. 08-1521), an important case about whether the Supreme Court's broad interpretation of an individual's right to possess guns under the Second Amendment will apply in the same way against state and local gun restrictions. The court's 2008 decision in District of Columbia v. Heller, involving restrictions in the nation's capital, did not raise some of the same issues about "incorporating" the Second Amendment toward the states.

The relevance for schools is that in the Heller case, the Chicago public schools had filed a friend-of-the-court brief urging the high court to uphold restrictions on guns to help stem the tide of urban violence. (See my blog post here.) I'm sure there will be similar briefs in the new case.

Posted by Mark Walsh at 11:45 AM | Permalink | No Comments | TrackBacks (0)

Last October, I reported on a conference at the Thomas B. Fordham Institute about the role of the judiciary in the American education system, which conference organizers correctly labeled an understudied topic.

The conference included draft papers under the theme of "From Brown to 'Bong Hits': Assessing a Half-Century of Judicial Involvement in Education."

Now, Fordham and Brookings Institution Press have published a book of essays stemming from that conference: From Schoolhouse to Courthouse: The Judiciary's Role in American Education.

"The multiple roles assumed, and decisions issued, by state and federal courts in this domain in recent years add up to a large, mixed bag of influences, many of them malign, on the K-12 education enterprise and earnest efforts to reform and renew it," Fordham President Chester E. Finn Jr. writes in the book's foreword. "Most jurists know plenty about the law, but few know much about schools and the conditions in which those responsible for teaching in and leading them are most apt to succeed."

In an overview essay, Joshua M. Dunn, an associate professor of political science at the University of Colorado-Colorado Springs, and Martin R. West, an assistant professor at the Harvard Graduate School of Education, note that in 1948 Justice Robert H. Jackson, in a concurrence in McCollum v. Board of Education, warned his Supreme Court colleagues against establishing themselves as "a super board of education for every school district in the nation."

But court involvement has, "by any measure, grown exponentially over the past 60 years," Dunn and West write. "Seemingly no aspect of education policy has been too insignificant to escape judicial oversight."

The duo, who served as editors of the collection, recruited talented academics for 11 chapter-length essays on such topics as school desegregation, education finance, high-stakes testing, special education, school choice, religion in public education, school discipline, and court cases under the federal No Child Left Behind Act.

These papers hit all the hot-button issues in education law (as well as some of the duller ones), and are generally on target in their emphases and analyses, in my opinion.

My chief criticism of the collection, which I also touched on when reporting on the draft papers and confence last October, is that it accepts without much challenge the view that litigation and judicial intervention have often been barriers to real school improvement. This is undoubtedly true in some respects, but the collection lacks perspectives from civil rights practitioners or other advocates for students or school employees.

Having said that, though, I would still heartily recommend the book for anyone with an interest in school law: professors, practicing attorneys, education students, administrators, policymakers, and the most interested teachers and parents (as well as students). It might be nice if a few federal judges or Supreme Court justices, or at least their law clerks, got their hands on the volume, too.

Since Fordham held its conference last year, the Supreme Court issued four new decisions on school law issues, in the areas of student searches, sexual harassment of students, special education, and services to English-language learners.The impact of the courts on our schools does not appear to be lessening anytime soon.

Posted by Mark Walsh at 4:04 PM | Permalink | 1 Comment | TrackBacks (0)

The U.S. Supreme Court decided several important education cases in its last term, in areas such as student searches, sexual harassment, special education, and the adequacy of services for English-language learners.

For the term that officially begins Oct. 5, the justices have not granted full review in any major education cases--yet. But a handful of appeals pending at the court involve provocative issues, including the Pledge of Allegiance, Confederate T-shirts, challenges to books in public school libraries, and student religious messages at graduation ceremonies.

A decision by the court to grant review in one or more of these cases would quickly make the 2009-10 term far more interesting for educators, students, and parents. (I plan a post next week on the handful of cases granted for the new term that have some implications for education.)

Here are the hot-button appeals pending at the court (with emphasis, again, that these cases have not yet been granted review):

Pledge of Allegiance
A Florida law that requires students to have parental permission to decline to participate in daily recitations of the Pledge of Allegiance is being challenged in a lawsuit backed by the American Civil Liberties Union.

Cameron Frazier says in court papers he was singled out and humiliated at his high school in 2005 when he refused to stand for the pledge. The Florida law requires all students to stand and recite the pledge unless a parent provides written permission for a student to be excused.

A federal district court struck down the law on its face and as applied to Frazier, but a three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, held last year that the law was meant to vindicate parents' rights to control the upbringing of their children, not students' rights. The court struck down a provision requiring students to stand even if they have permission to not recite the pledge, but it upheld the parental-permission requirement.

The full 11th Circuit declined to rehear the case over the lone dissent of Judge Rosemary Barkett, who said "students possess basic rights of belief and expression under the First Amendment independent of their parents."

In an appeal to the justices on behalf of Frazier, the ACLU says the ruling runs smack up against the Supreme Court's 1943 decision in West Virginia State Board of Education v. Barnette, which recognized a right of conscience that barred schools from compelling students to recite the pledge.

The appeal in Frazier v. Smith (Case No. 08-1351) is on the high court's list for its Sept. 29 private conference, when the justices will discuss appeals that have piled up over the summer.

Confederate Symbols
Also pending on the Sept. 29 conference list is an appeal on behalf of three Tennessee students who challenge their school district's prohibition of displays of the Confederate flag.

A panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled last year in favor of the Blount County, Tenn., school district and administrators in a challenge to the prohibition by students who say they wish to express their Southern heritage by wearing clothing depicting the Confederate flag.

The appeals court pointed to facts in the record about several racial incidents at William Blount High School, including an alleged physical altercation between black and white students at a basketball game in 2005, and several incidents of racist graffiti found in a boys' restroom, including one depicting a noose.

Lawyers for the students who challenged the district argued there was no evidence that Confederate flag symbols had caused disruptions at the school. Their appeal is Barr v. LaFon (No. 08-1325).

Book Challenge
A controversy over a children's book called ¡Vamos a Cuba!, or A Visit to Cuba, is the basis of another appeal brought to the Supreme Court by the American Civil Liberties Union of Florida.

A panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, ruled 2-1 in February that the Miami-Dade County, Fla., school board did not violate the First Amendment when it removed the Cuba book from the shelves of school libraries.

As I noted in this post about the appeals court decision, the majority and dissenting opinions total 177 pages in the case about a book for 4- to 8-year-old readers that is only 26 sentences long.

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.

The Miami-Dade school board's 6-3 decision to remove the book was struck down by a federal district court but upheld by the 11th Circuit court panel, which said "overwrought rhetoric about book banning has no place here."

The appeal to the Supreme Court in American Civil Liberties Union of Florida v. Miami-Dade County School Board (No. 08-1564) raises questions about whether the appeals court failed to show proper deference to the district court's factual findings.

The appeal was originally on the court's Sept. 29 conference list, but the court has requested a response from the Miami-Dade County School Board, which initially declined to file any brief in the case.

Religious Message at Graduation
In the latest in a series of controversies over high school graduation ceremonies, a student who was disciplined for offering a testimonial to Jesus Christ at her commencement is asking the Supreme Court to review her case.

Erica Corder was one of 15 co-valedictorians at Lewis-Palmer High School in Colorado in 2006, and each was allowed to offer a 30-second valedictory message, according to court papers. Corder used her time for a testimonial to Jesus, after which her principal withheld her diploma and said she would not receive it unless she offered a public apology. She did so, and her apology was distributed via e-mail to her school community. But she filed a lawsuit alleging that her First Amendment free speech and free exercise of religion rights were violated.

Both a federal district court and the U.S. Court of Appeals for the 10th Circuit, in Denver, ruled for the Lewis-Palmer School District and other defendants. The 10th Circuit panel held in May that the valedictory speeches were under the control of the district and school officials could exercise editorial control over them.

The Supreme Court requested a response to the appeal in Corder v. Lewis Palmer School District (No. 09-257) after the district initially declined to file a brief.

Posted by Mark Walsh at 4:27 PM | Permalink | No Comments | TrackBacks (0)

OK, comments, yes, but not that many letters.

But below is a link to a letter published in Education Week responding to a recent post of mine about the case of Debbie Almontaser, who lost her job as a New York City high school principal amid a controversy over her comments to the press interpreted by some as sympathetic to Islamic radicals.

The letter from Almontaser's lawyer makes the point that her case is not over and an appeal is planned to the U.S. Court of Appeals for the 2nd Circuit, as well as pursuit of a separate action before the federal Equal Employment Opportunity Commission.

The letter is here, and my Sept. 7 post is here.

Posted by Mark Walsh at 10:36 PM | Permalink | 2 Comments | TrackBacks (0)

A ruling last month by a state appeals court in California raises some interesting questions about how schools handle student harassment, as well as the use of arbitration for disputes at private schools.

According to court papers, a student at a prominent independent private school in Los Angeles, the Harvard-Westlake School, was perceived as gay and received death threats and harassing comments involving sexual orientation on his personal Web site. The student, identified only as D.C., was a budding singer and actor and maintained the Web site to promote his career. His lawsuit says he is not gay.

Some visitors wrote death threats and anti-gay slurs on the Web site's guestbook.

The police got involved, and D.C. was encouraged to transfer to another school. According to the ruling by a three-judge panel of the California Court of Appeal, the Harvard-Westlake school did not suspend or expel any of the students it identified as making some of the harassing comments on D.C.'s Web site. The school newspaper published an article identifying D.C.'s new school.

The family sued the school, alleging negligence for failing to maintain a safe school environment, intentional infliction of emotional distress, and a conspiracy claim that alleged the school sought to protect the harassers.

The school denied the allegations and filed a petition to enforce the arbitration clause in its enrollment contract, which requires "any legal or actionable controversy" arising out of the contract be submitted to binding arbitration.

An arbitrator ruled for Harvard-Westlake on the merits of the complaint brought by D.C. and his parents. The arbitrator then granted the school's request that the parents should pay the school's attorneys' and arbitration fees, in the amount of $521,000.

A state trial court judge affirmed the fee award, so the family appealed. In its Aug. 14 ruling in D.C. v. Harvard-Westlake School, the Los Angeles-based state appellate panel ruled 2-1 that the school could not recover the arbitration-related fees.

The court said it was bound by an earlier appellate ruling that went against the family's basic claims under state law. But it held that a losing plaintiff bringing a complaint under California's hate-crimes statutes could not be forced to pay the defendant's attorneys' and arbitration fees.

"The possibility of an award of attorney fees against the plaintiff in a hate crimes case would discourage such litigation," the appellate court said.

Such hate-crimes claims did not merit case-by-case analysis as to whether a prevailing defendant, such as the school, could recover its fees under arbitration, the court said.

"This case involves death threats motivated by a statutorily protected personal characteristic; it is not a vehicle-leasing transaction or a business arrangement gone awry," the court said.

While this ruling is a matter of California law, it does make me wonder how many private schools across the country have mandatory arbitration clauses in their enrollment contracts.

Posted by Mark Walsh at 1:33 PM | Permalink | No Comments | TrackBacks (0)

A school district did not violate the rights of a student when it barred her and other members of the wind ensemble from performing "Ave Maria" at a high school graduation ceremony, a federal appeals court has ruled.

Student Kathryn Nurre sought to perform an instrumental version of the song, which translates to "Hail Mary," at the 2006 graduation ceremony of Henry M. Jackson High School in Everett, Wash. But school administrators, who had received complaints about a musical selection with religious references at a 2005 graduation, told Nurre and the wind ensemble to select a secular piece of music, which they reluctantly did.

Nurre sued the superintendent of the Everett school district, alleging that the decision censored her speech in violation of the First Amendment's free-speech clause, showed hostility towards religion in violated of the First Amendment's establishment clause, and violated her equal-protection rights.

A federal district court held that the student's rights were not violated. On Sept. 8, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, upheld the district court. The judgment was unanimous, although one member of the panel wrote an partial dissent, saying the district violated Nurre's free-speech rights.

The appeals court majority said such cases on religious expression were always difficult for schools, and it was not ruling that religious music could never be played in public schools. But because a graduation ceremony is considered an obligatory event for the high school seniors, district officials acted reasonably in seeking to keep the musical selections secular.

"Here, the district was acting to avoid a repeat of the 2005 controversy by prohibiting any reference to religion at its graduation ceremonies," Judge Richard C. Tallman wrote for the 9th Circuit majority in Nurre v. Whitehead. "District administrators recognized the evident religious nature of 'Ave Maria' and took into consideration the compulsory nature of a graduation ceremony."

Judge Milan D. Smith Jr., in his partial dissent, said the ruling could lead public schools to eliminate music "with any trace of religious inspiration" from its programs.

"The taking of such unnecessary measures by school administrators," Judge Smith said, "will only foster the increasingly sterile and hypersensitive way in which students may express themselves in such fora, and hasten the retrogression of our young into a nation of Philistines, who have little or no understanding of our civic and cultural heritage."

Posted by Mark Walsh at 8:35 AM | Permalink | No Comments | TrackBacks (0)

A U.S. Supreme Court case that started out as a test of whether an anti-Hillary Clinton movie by a nonprofit advocacy group violated federal campaign-finance law has become something much bigger.

In ordering a reargument of Citizens United v. Federal Election Commission (Case No. 08-205) in June, the justices asked the parties to address whether the court should overrule two of its important campaign-finance precedents. And that opened up the possibility of a major shakeup in this area of the law that could allow corporations (both for-profit and non-profit) and labor unions to spend money directly from their own treasuries to influence the outcome of federal and state elections. That's something they can't do under current law, which requires unions and corporations to establish political action committees that collect voluntary donations from union members or corporate employees to be used in the political arena.

Although they are largely on the sidelines of the Citizens United case, the politically powerful national teachers' unions are paying close attention.

The Supreme Court "could invalidate the heart of campaign-finance regulation," Phil Hostak, a staff lawyer at the National Education Association who has been following the debate, said in an interview.

Both Hostak and Robert H. Chanin, the NEA's longtime general counsel, insisted in the interview that they would rather not see the Supreme Court overturn its campaign-finance precedents, even though a loosening of restrictions on union treasury spending on politics could boost the power of politically active unions.

But Hostak and Chanin point out that any such ruling would also allow corporations freer rein in the political arena as well.

"Ultimatley, there's just no question that the labor movement as whole can't marshal the kind of resources that the Business Roundtable, or the [U.S.] Chamber of Commerce, or, say, the insurance industry can amass," Hostak said, referring to two influential business lobbies in the nation's capital.

Keeping the status quo would "preserve the balance" struck in existing campaign-finance laws, Hostak said.

Chanin, who is retiring at the end of this year, said, "Even the largest unions are not in a league with big corporations" when it comes to potential spending on elections.

The lawyers said they opted not to file a friend-of-the-court brief in the Citizens United case, noting that the justices were swamped with briefs from scores of groups.

One labor organization that did file a friend-of-the-court brief is the AFL-CIO, the federation of 56 U.S. and international unions representing 11 million workers. The American Federation of Teachers is an AFL-CIO member, but the NEA is not.

The AFL-CIO calls for overturning federal campaign-finance restrictions on union and corporate spending on the grounds that the restrictions violate the First Amendment free-speech rights of those entities.

The labor federation again urged the Supreme Court to overturn the provisions of the Bipartisan Campaign Reform Act of 2002 (better known as the McCain-Feingold law) that criminalize violations of restrictions against "electioneering communications." The AFL-CIO had been part of a major challenge to the McCain-Feingold law in which the court upheld most of its provisions.

"The AFL-CIO ... did so because this provision criminalized the AFL-CIO’s use of the broadcast medium as a legislative and policy advocacy tool, falsely characterized substantial labor organization speech on matters of public concern as wholly or substantially electoral, and impaired union political participation as a matter of law," the federation said in its brief, which is on the side of the advocacy group that is producing the movie critical of Hillary Clinton.

Today's 90-plus minute re-argument (PDF) in the Citizens United case marked the first case heard by new Justice Sonia Sotomayor. The new justice questioned whether the case was the appropriate vehicle for such a broad reconsideration of campaign finance.

"Mr. Olson, my difficulty is that you make very impassioned arguments about why this is a bad system that the court [has] developed in its jurisprudence, but we don't have any record developed below," Sotomayor said to Theodore B. Olson, the lawyer representing Citizens United and arguing for the campaign-finance precedents to be overruled.

Her questions and comments appeared to put her leaning on the side of the court's more liberal members, who either support the federal restrictions or were seeking a narrow way to find that the Hillary Clinton movie was not in violation.

But three of the court's more conservative members--Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas--are on record as believing many campaign-finance restrictions on corporate and union spending violate the First Amendment. And two members who were not on the court when it considered the McCain-Feingold law, Chief Justice John G. Roberts Jr. and Samuel A. Alito Jr., have suggested that they are leaning toward the First Amendment view.

"We don't put our First Amendment rights in the hand of FEC bureaucrats," Chief Justice Roberts said at one point.

Posted by Mark Walsh at 2:28 PM | Permalink | No Comments | TrackBacks (0)

A federal appeals court has revived the national-origin discrimination lawsuit of a Chicago teacher who alleges that her principal called her "a stupid Polack" and took adverse job actions against her.

A three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, upheld the dismissal of other claims brought by Anna Darchak, who was a Polish bilingual teacher at an elementary school in the 2005-06 school year when the controversy occurred.

For example, the court refused to revive a claim that Darchak faced a retaliatory discharge for complaining that she was assigned to a Spanish bilingual class, which Darchak believed was in violation of requirements of the federal No Child Left Behind Act because she wasn't qualified as a Spanish teacher.

But the appeals court revived Darchak's national-origin bias claim under Title VII of the Civil Rights Act of 1964. Darchak alleges that when she complained that Hispanic students were being treated better at the school than students of Polish descent, her principal made the "stupid Polack" remark and said that Hispanic students "deserve more than Polish people."

Darchak's suit, which named the Chicago school district the defendant and not the principal, argues that the principal's alleged derogatory remarks about Polish people motivated the decision not to renew Darchak's teaching contract.

The appeals court noted that Darchak's own testimony is the sole evidence of the principal's remarks. And the school system offered several legitimate reasons for the teacher's nonrenewal, including ineffective classroom management and her refusal to follow a schedule. But the evidence of the discriminatory remarks combined with what followed--a cautionary notice charging Darchak with insubordination and later her contract nonrenewal--was sufficient to allow the national-origin claim to go before a jury, the court said.

"While it is also true that isolated remarks are not enough to meet the plaintiff’s burden, remarks coupled with an adverse employment action suffice," the appeals court said in its Sept. 3 decision in Darchak v. City of Chicago Board of Education. "Because Darchak’s evidence of discrimination is sufficient to reach a jury, she does not bear the burden of proving that the defendant’s reasons for terminating her were pretextual."

Posted by Mark Walsh at 1:32 PM | Permalink | No Comments | TrackBacks (0)

A New York City school administrator's controversial comments to a newspaper were provided as part of her official duties, and thus they were not protected by the First Amendment, a federal district judge has ruled.

The decision came in the much-debated case of Debbie Almontaser, who was the acting interim principal of the Khalil Gibran International Academy, public school in the city, in August 2007 when she gave an interview to the New York Post about the school. The Post's story twisted her words, Almontasers supporters say, to suggest that the administrator was sympathetic to Islamic radicals.

(Almontaser's case was featured as part of an HBO documentary, "Shouting Fire: Stories From the Edge of Free Speech." )

Amid a firestorm of controversy, Almontaser resigned the interim position, but later applied to become the school's principal. The New York City school system's refusal to hire her prompted a lawsuit that charged retaliation for expressing her views.

Both the federal district court and the U.S. Court of Appeals for the 2nd Circuit, in New York City, have already ruled against Almontaser's efforts seeking a preliminary injunction. (The 2nd Circuit's 2008 ruling is here.)

In the latest decision, issued Sept. 1 in Almontaser v. New York City Department of Education, U.S. District Judge Sidney H. Stein granted summary judgment to the school system on the former administrator's amended lawsuit. (Thanks to the National School Boards Association's Legal Clips for the tip and the text of the decision.)

Judge Stein held that Almontaser's case was governed by the U.S. Supreme Court's 2006 decision in Garcetti v. Ceballos, in which the justices ruled that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and "the Constitution does not insulate their communications from employer discipline.”

Judge Stein said the parties agree that Almontaser’s official duties included speaking with the press.

"Thus, the only question is whether Almontaser can carve out a portion of her statements made during an interview that was arranged and supervised by her employer as the protected speech of a private citizen," the judge said. "When that entire interview owes its existence to Almontaser’s official
responsibility to interact with the press on behalf of [her school], then the individual statements made within the conversation also fall within her official—and thus unprotected—speech."

Posted by Mark Walsh at 11:07 PM | Permalink | No Comments | TrackBacks (0)

A sign with some variation of the above message is posted at many schools, where rules require visitors to check in.

At Bee Cave Elementary School, in the Lake Travis Independent School District in Texas, not only must parents and other visitors check in at the office, they must show their driver's license so school officials may conduct a background check for sex offender status. Under a school district regulation, visitors who refuse to provide the information necessary for a background check are not permitted access to "secure" areas of the school, such as hallways and classrooms.

Parents Larry and Yvonne Meadows sued the district over the identification policy. In the fall of 2006, the mother had several run-ins with administrators over the policy, and her license information was never entered into the search system. It appears the family's objections were purely a matter of principle.

The family's suit raised several federal and state law claims, including that the policy interfered with their Fourth Amendment right to be free of unreasonable searches and seizures and their 14th Amendment substantative-due-process right to direct the upbringing of their children.

A federal district judge on Aug. 18 issued a summary judgment in favor of the the school district.

"The crux of the plaintiffs' claims is their belief they possess a constitutional right to be physically present with their children in the classroom to supervise their children's education," said the opinion by U.S. District Judge Sam Sparks of Austin, Texas. But there is no substantive due-process right of a parent to access all areas of her child's school, the judge held.

"The district clearly has a rational basis for requiring compliance with its policy, namely maintaining the safety and security of its schools and students," Judge Sparks said.

The judge's decision in Meadows v. Braxdale is highlighted on the Web site of Raptor Technologies Inc. The Lake Travis school district uses the company's system to conduct the sex-offender background check on visitors, so the company was understandably happy to spread the news of the judge's decision.

According to Judge Sparks's opinion, Raptor checks the names of school visitors against all U.S. sex offender databases. It also replaces sign-in sheets with a visitor ID badge system.

A footnote: Judge Sparks noted that since the dispute in Lake Travis, the Texas Legislature has amended the state education code to authorize school districts to demand identification from visitors and to search any sex-offender database accessible to them.

Posted by Mark Walsh at 2:52 PM | Permalink | 2 Comments | TrackBacks (0)