January 2010 Archives

A New York City teacher's grievance to his union complaining that school administrators failed to discipline a student who threw books at him was not protected speech under the First Amendment, a federal appeals court has ruled.

Thus, the teacher's lawsuit alleging retaliation, and ultimately, discharge, for his complaints was properly dismissed by a lower federal court, a panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, ruled 2-1.

David H. Weintraub, who taught 5th grade at Public School 274 in Brooklyn, alleged in court papers that a student threw a book at him. The teacher referred the student to the assistant principal, who returned him to class without disciplining him. The next day, the student again threw a book at Weintraub, he alleged, and again went undisciplined.

Weintraub alleged that because of his complaints and the grievance, school officials retaliated against him by filing unfounded negative classroom evaluations, performance reviews, and disciplinary reports, and that he was ultimately terminated.

His lawsuit against the New York City school system and various officials alleged, among other things, a violation of his First Amendment rights. He won a partial victory in a federal district court, but in its Jan. 8 opinion in Weintraub v. Board of Education of the City of New York, the 2nd Circuit panel ruled for the school system.

The majority said Weintraub's claim was controlled by the U.S. Supreme Court's 2006 decision in Garcetti v. Ceballos, which held that the First Amendment does not protect
speech made pursuant to a public employee's official duties.

"We conclude that Weintraub's grievance was pursuant to his official duties because it was part-and-parcel of his concerns about his ability to properly execute his duties as a public school teacher -- namely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning," said the majority opinion by U.S. Circuit Judge John M. Walker Jr.

The majority said a union grievance is not akin to the teacher's letter to a newspaper complaning about school decisions that the Supreme Court held was protected by the First Amendment in its 1968 decision in Pickering v. Board of Education of Township High School District 205.

"Rather than voicing his grievance through channels available to citizens generally, Weintraub made an internal communication made pursuant to an existing dispute-resolution policy established by his employer, the Board of Education." Judge Walker said.

Judge Guido Calabresi dissented, saying that while the teacher's direct complaints to his administrators about the student's book throwing would fall under the unprotected "official duties" speech outlined in Garcetti, the high court's ruling does not "compel" the union grievance to be treated that way.

"I doubt that most employers would view union activity as something that their employees do for the employer's benefit," Judge Calabresi said. "There is a distinct irony in the idea that unions, which so many employers seek to exclude from the workplace, are somehow transmuted into entities that promote the employer's mission for purposes of the First Amendment."

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An Illinois school district that allegedly concealed a teacher's record of sexually abusing students was not liable when the teacher continued to abuse students in another community, a federal appeals court has ruled.

The McClean County school district in rural Illinois employed Jon White as an elementary schoolteacher from 2002 to 2005, when according to court papers he inappropriately hugged female students, wrapped his legs around them, showed them sexually suggestive photographs, had students massage him, and more.

The McClean County district decided to get rid of White, but allegedly concealed his record of complaints, offering a severance agreement that let him quietly resign and providing a falsely positive letter of recommendation that resulted in "passing" him to the Urbana school district, according to court papers. Working as a teacher In Urbana from 2005 to 2007, White continued his pattern of sexual misconduct. In 2007, White pleaded guilty to two counts of aggravated criminal sexual abuse of two of his McClean County students and eight of his Urbana students, court papers say.

A lawsuit filed on behalf of one of the Urbana students sought to hold the McClean County district liable under Title IX, alleging that the first employer's concealment of White's record of abuse amounted to a deliberate indifference to the safety of the Urbana students. The suit also raised claims under Illinois law.

The suit was dismissed by a federal district court, and in a Jan. 22 opinion, a three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, upheld the dismissal.

"Even assuming that the defendants had actual knowledge of a risk that White would sexually abuse Urbana students, they still lacked the requisite control over such harassment to incur Title IX liability," the court said in Doe-2 v. McClean County Unit District 5. "White harassed Doe-2 in Urbana several months after he left the McLean County School District, meaning that these McLean County defendants lacked authority to take remedial action."

The court said expanding the private right to sue under Title IX to include a "teacher-harasser no longer in its control" would discourage "school officials from quietly shuffling abusive teachers on to another district." But under Supreme Court precedents on sexual harassment of students, districts may only be held liable for known acts of harassment subject to their control, the court said.

The court also rejected any liability for the McClean County district under Illinois law.

Education Week's Caroline Hendrie reported extensively in 1998 on school employee abuse of students, including this story specifically about "passing the trash." Hendrie updated her series in 2003.

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A sharply divided U.S. Supreme Court today overturned limits on spending by corporations and labor organizations, including teachers' unions, on political communications.

The court in a 5-4 decision overruled two key precedents on campaign finance and struck down key provisions of the Bipartisan Campaign Reform Act of 2002, better known as the McCain-Feingold law.

"Our nation's speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights," Justice Anthony M. Kennedy wrote for the majority in Citizens United v. Federal Election Commission (Case No. 08-205). That part of his opinion was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr.

Justice John Paul Stevens, writing in dissent for the court's liberal wing, said the majority's ruling "threatens to undermine the integrity of elected institutions across the nation."

"At bottom, the court's opinion is ... a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt," said Justice Stevens's dissent, which was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor.

There was no immediate reaction from the teachers' unions or other labor organizations.

The AFL-CIO, of which the American Federation of Teachers is a member, had filed a friend-of-the-court brief opposing limits on union political speech. The court should "recognize no compelling governmental interest in criminalizing independent union electoral speech," the brief said, referring to provisions in the McCain-Feingold law that make it a crime for corporations or unions to use their general treasury funds on "electioneering communications" or for speech advocating the election or defeat of a candidate close to election time.

The National Education Association had declined to file a brief in the case, saying last year it was concerned that removing limits on campaign speech would boost corporations more than labor groups.

Update: The American Federation of Teachers is not necessarily on the same page as the AFL-CIO in the case. "The ruling is a victory for corporate special interests and a setback for those of us who supported campaign finance reform and believed that there should be a level playing field in political races," AFT spokesman John See told me.

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The U.S. Supreme Court today refused to hear the appeal of a Pennsylvania mother who was barred from reading a Bible passage during a visit to her son's kindergarten class.

Donna Kay Busch sought to read passages from the Book of Psalms when she was invited to her son Wesley's kindergarten class as part of an "All About Me" program. Children at Culbertson Elementary School in the Marple Newton School District were instructed to discuss their family, hobbies, or interests, and parents were invited to "share a talent, short game, small craft, or story" during their child's turn.

When Busch began reading from the Bible in her son's class, the teacher summoned the principal, Thomas Cook. Cook told Busch that reading from the Bible to the kindergartners would be "against the law ... of separation of church and state, and we can't let that kind of thing happen in this school."

Busch noted in court papers that her son had encountered books about Christmas, Easter, and Hanukkah at the school, and that another parent had made presentations about Hanukkah and Passover to the kindergartners.

Busch sued the district and officials under the free speech and establishment-of-religion clauses of the U.S. Constitution and the Pennsylvania state constitution. A federal district court ruled for the school defendants,

Last June, a panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled 2-1 in favor of the school district. The majority said a Bible reading in public school "unquestionably conveys a strong sense of spiritual and moral authority."

"In this case, the audience is involuntary and very young. Parents of public school kindergarten students may reasonably expect their children will not become captive audiences to an adult's reading of religious texts," the court added.

The dissenting judge would have upheld the mother's free-speech claim, saying the district engaged in viewpoint discrimination against religious speech.

The mother's appeal to the Supreme Court, backed by the Charlottesville, Va.-based Rutherford Institute, said the 3rd Circuit court's decision "leaves neither public school administrators nor students, parents, or any other party with any clear guidance" as to when schools may suppress viewpoints in school-sponsored activities.

In a brief urging the high court to deny review in the case, the Marple Newton school district said that the mother was trying to "make Wesley's 'All About Me' week 'all about her,'" and that there was no split in the appeals court on parents reading the Bible to public school kindergartners.

The justices considered the mother's appeal in Busch v. Marple Newton School District (Case No. 09-315) at several of their private conferences in recent weeks, but they declined it without comment or dissent on Tuesday.

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In light of a speech this week by American Federation of Teachers President Randi Weingarten on her willingness to streamline the process for dismissing ineffective teachers, a decision by a federal appeals court Monday sheds some light on how lengthy that process can be.

Robert Gilbert, a veteran social studies teacher at Palatine (Ill.) High School, was dismissed from his job in 1995. According to court papers, Township School District No. 211 in suburban Chicago charged him with insubordination, acrimonious relationships with colleagues, and failure to complete a remediation plan.

Because he had tenure, Gilbert was entitled to challenge his dismissal before a state administrative hearing. The school district went first and presented over 40 days worth of evidence against Gilbert. Before presenting any evidence of his own, Gilbert sought a judgment in his favor. In 2001, seven years after the original dismissal, the hearing officer granted Gilbert's request on two grounds and ordered him reinstated.

The school district appealed by filing a complaint in state court. A trial court, in 2002, affirmed one basis for reinstating the teacher. But an Illinois appellate court ruled for the school district and ordered the case remanded to reinstate Gilbert's dismissal. The teacher tried to get the state appellate court to clarify whether he still had a right to present his case to a hearing officer, but to no avail. The trial court refused to let his case return to the hearing officer, and in 2004 issued an order reinstating the dismissal.

Gilbert then turned to the federal courts, suing the school district, the Illinois State Board of Education, and the state courts, alleging violations of the his due-process rights under the federal constitution. He lost in a federal district court in 2007, and on Jan. 11, in the U.S. Court of Appeals for the 7th Circuit, in Chicago.

A three-judge panel of that court ruled unanimously that Gilbert had no federal case because of so-called Rooker-Feldman doctrine, based on two Supreme Court rulings establishing that federal courts generally lack jurisdiction to review the rulings of state courts in civil cases.

"Betraying a fundamental misunderstanding about the structure of the parallel judicial systems in the United States, Gilbert argues that his case is independent of the state court actions and thus not barred by Rooker-Feldman," the appeals court said in its decision in Gilbert v. Illinois State Board of Education. "But that is not how the system works."

Of course, Gilbert may still appeal his case to the U.S. Supreme Court.

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The U.S. Supreme Court today declined to hear a student's challenge to a Texas school district's dress code that prohibits most messages on student shirts, including political slogans.

Returning from their holiday recess, the justices also refused appeals on teacher testing and school district taxation of satellite TV revenues.

In the T-shirt case, a student and his parents appealed a decision last August by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, that upheld the denial of a preliminary injunction sought by Paul Palmer, a student at Waxahachie (Texas) High School. In 2007, Palmer sought permission to wear shirts with messages supporting the presidential campaign of John Edwards, as well as another shirt extolling free speech and the First Amendment.

School officials said the shirts violated a dress code that permits only small logos or symbols of school clubs or promoting school spirit. The dress code does allow political messages on buttons, pins, and wrist bands.

Palmer and his parents sued under the First Amendment, arguing that wearing of the shirts would not disrupt school, that they were not drug-related or sexually explicit, and that their wearing would not appear as school-sponsored speech and thus would be protected expression.

The family lost in both a federal district court and in the 5th Circuit, which ruled Aug. 13 that the dress code's restriction on messages was a content-neutral regulation of speech.

The court said one goal of the school district with its dress code, "promoting
professional and responsible dress," was justifiable "because students are
prepared for a working world in which pins and buttons may be appropriate at work but large, stark political message T-shirts usually are not."

In his appeal to the Supreme Court, Palmer said the 5th Circuit decision "threatens to vest government-run schools with virtually unfettered authority to censor student speech."

Palmer's appeal was supported by several legal groups, including the American Center for Law and Justice, the Institute for Justice, the Becket Fund for Religious Liberty, and the Christian Legal Society.

The Waxahachie school district urged the justices to deny the appeal, saying the 5th Circuit decision was correct and that the fact that the case involved a preliminary injunction made it a poor vehicle for Supreme Court review.

The justices declined without comment to hear the appeal in Palmer v. Waxahachie Independent School District (Case No. 09-409).

In the teacher-testing case, the justices declined without comment an appeal by a New York City teacher with dyslexia who sought an accommodation to use a dictionary as a spelling aid for the essay portion of a state teaching test.

Marsha Falchenberg sued after she lost her job as a result of her failure to pass New York State's Liberal Arts and Sciences Test, or LAST. She lost in both a federal district court and in the U.S. Court of Appeals for the 2nd Circuit, in New York City, which ruled last year that spelling was among the skills being tested on the LAST and thus that no accommodation was required under federal disability law.

The appeal was Falchenberg v. New York City Department of Education (No. 09-471).

Finally, the justices declined an appeal by the state of Kentucky and the Frankfort school district of court rulings that invalidated a state law applying school taxes to providers of direct satellite television. The Kentucky Supreme Court ruled that state tax law was preempted by the federal Telecommunications Act of 1996.

The case was Treesh v. DirecTV Inc. (No. 09-355).

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A federal appeals court has ruled that an Arizona charter school is not a "state actor" for purposes of federal civil rights law. The court upheld the dismissal of a lawsuit filed by a former teacher at the school who alleged that the school deprived him of his liberty interest in finding other work.

Michael Caviness, a former physical education teacher and coach at the Horizon Community Learning Center in Phoenix, was placed on administrative leave in 2006 for questionable judgment over personal phone contacts with a female student, according to court papers. Caviness contended that the student had a crush on him and that he did nothing wrong. After his contract was not renewed, Caviness alleges that the charter school declined to clear his name and refused to provide references as he sought another teaching job.

He sued the school under the federal civil rights law known as Section 1983. That law, which stems from the Reconstruction-era Civil Rights Act of 1871, allows individuals to sue over any alleged deprivation of rights carried out under "color of law." To succeed in such a case, the plaintiff must show that the challenged conduct was attributable to government action.

For both a federal district court and the U.S. Court of Appeals for the 9th Circuit, in San Francisco, the key question was whether an Arizona charter school was a "state actor" under Section 1983. Both courts concluded it was not, and thus Caviness's suit could not proceed.

"This case presents the special situation of a private nonprofit corporation running a charter school that is defined as a 'public school' by state law," the three-judge appeals court panel said in its unanimous Jan. 4 decision in Caviness v. Horizon Community Learning Center.

The court said that even though charter schools are defined as public schools by the state of Arizona and are subject to extensive state rules and obligations, that does not transform private organizations that run them into government actors.

The appeals court cited a 1982 ruling by the U.S. Supreme Court, in Rendell-Baker v. Kohn, that a private school for troubled students in Massachusetts that received nearly all of its students by referral from public school districts and the state was nonetheless not a state actor for employment purposes under Section 1983.

"The Arizona legislature chose to provide alternative learning environments at public expense, but, as in Rendell-Baker, that legislative policy choice in no
way makes these services the exclusive province of the state," the appeals court said.

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