September 2010 Archives

The U.S. Supreme Court formally opens its new term next Monday, but today the justices added 13 more cases to its docket and announced a new policy on offering audio recordings of its oral arguments.

None of the cases granted review today involve education.

In this week's issue of Education Week, I have this story: "K-12 Implications Seen in Some Cases Before High Court," which discusses, among others, a tuition tax credit case out of Arizona and a case involving a California law that restricts the sale of violent video games to minors.

Meanwhile, the Supreme Court's new audio policy should be a great tool for educators and help the general public understand the work of the court.

The court's public information office announced that beginning with the new term, audio recordings of all oral arguments will be made available free on the court's Web site, www.supremecourt.gov, at the end of each argument week.

Heretofore, the court on rare occasions offered same-day audio of oral arguments to the news media. The audio recordings of all cases are maintained by the National Archives, but audio from a court term was not available publicly until the beginning of the court's next term. Such older recordings are available on the Oyez Web site of Northwestern University.

Under the new policy, audio of all cases will be available beginning Friday afternoons of an argument week. During such weeks, arguments are typically held in six to nine cases on Mondays, Tuesdays, and Wednesdays.

The court will discontinue offering any same-day audio in big cases, Supreme Court spokeswoman Kathy Arberg said.

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A federal appeals court reversed itself Monday and struck down a federal regulation that permits teachers working towards alternative certification to be considered "highly qualified" under the No Child Left Behind Act even if they are merely making "satisfactory progress" towards certification.

A panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, had ruled in July 2009 against a group of California activists who argued the federal regulation permitted a disproportionate number of teaching "interns" to teach in California schools with large proportions of minority and low-income students. The court said the plaintiffs lacked standing to bring the suit and ordered the suit dismissed.

Today, however, the panel reversed itself and held that the plaintiffs, which include California ACORN, Californians for Justice, and minority parents and children, did have legal standing to challenge the federal interpretation. And the panel went on to rule that the U.S. Department of Education's 2004 regulations interpreting the "highly qualified teacher" provisions of NCLB go too far in relaxing the definition.

"We conclude that the Secretary's regulation impermissibly expands the definition of 'highly qualified teacher' contained in [the NCLB statute] by including in that definition an alternative-route teacher who merely 'demonstrates satisfactory progress toward' the requisite 'full State certification,'" U.S. Circuit Judge William A. Fletcher wrote for a 2-1 majority in Renee v. Duncan. (Fletcher was in dissent in the panel's 2009 decision.)

At issue are teachers with what California defines as "intern" credentials, who are on a path to completing alternative certification but have not yet achieved it. The lawsuit argues that 41 percent of teaching interns in California teach in the 25 percent of schools with the highest concentrations of minority students.

"In adopting NCLB, Congress decided that teachers with 'full State certification' are, in the aggregate, better teachers than those without such certification," Judge Fletcher wrote. "We recognize that it is debatable whether Congress was correct in deciding that
teachers with 'full State certification' are in fact better than teachers without such certification."

This is especially debatable if many of the interns come from programs such as Teach for America, the judge said. But the disparate assignment of teachers without full state certification to minority classrooms means the plaintiff families have suffered "injuries in fact" that give them standing to sue, Judge Fletcher said.

Writing in dissent today, Judge Richard C. Tallman said he did not believe the plaintiffs have standing against the federal Education Department because their real complaint is with the California Department of Education and its teaching-certification definitions.

Tallman characterizes the lawsuit as an attack on Teach for America participants and their intern status as meeting the "highly qualified" teacher definition under the challenged federal regulation.

"By removing the Teach for America teachers' 'highly qualified' label, [the plaintiffs] hope to lower the number of Teach for America teachers legally allowed to fill vacant positions in low-income area schools," Judge Tallman wrote. But that goal may not even result from striking down the regulation because many "highly qualified teachers" prefer to work in affluent schools over those in low-income areas, he said.

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There were two interesting settlements this week in lawsuits I have reported on in the blog.

'Sexting': A Pennsylvania school district "has settled a lawsuit alleging that a principal illegally searched a student's cell phone, found nude pictures she had taken of herself, and turned it over to prosecutors," the Associated Press reports.

The case involved the Tunkhannock Area School District, which was sued by the American Civil Liberties Union of Pennsylvania on behalf of a 17-year-old student whose phone was searched by a school principal. The student intended the photos to be viewed by her boyfriend.

Under the settlement, the school district denied any liability or wrongdoing but agreed to pay the student and her lawyers $33,000 to resolve the dispute, the ACLU chapter says in this news release. The student's claims against the a prosecutor's office were not settled and will proceed through litigation, the release said.

In March, I reported here that a federal appeals court ruled that the prosecutor likely overstepped constitutional boundaries when he threatened the student with prosecution over the alleged "sexting."

Shock Therapy: In a separate case, "the family of a former student who received electric shocks at a special needs school has agreed to receive $65,000 to settle a lawsuit claiming the treatment was inhumane and violated the student's civil rights," the AP reports.

The case involves "aversive therapies" used at the Judge Rotenberg Center in Canton, Mass. The settlement comes after a federal appeals court in 2008 ordered a lower-court to reconsider an injunction that had barred the New York State Education Department from enforcing an emergency regulation against the shock therapy, which I reported on in the blog here.

The New York State agency became involved because the Massachusetts school serves students who have been referred there as part of their special education plans. The U.S. Department of Justice said this past February that it had begun an inquiry into the school's methods.

The school contends that parents consent to the use of shock therapy when enrolling their children in the Judge Rotenberg Center. The AP reports that settlement came in a suit filed in 2006 on behalf of Antwone Nicholson, then 17, of Freeport, N.Y., who attended the school for about four years. Nicholson's mother, Evelyn, became concerned that the shock therapy was used in far more circumstances than she thought it would and became "inhumane," her lawyer told AP.

The school issued a statement calling the settlement "minimal" and something requested by its insurer. The school defends its practices on its website.

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It seems that one way or another, the controversy over the Pledge of Allegiance in public schools is headed back to the U.S. Supreme Court.

A three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, heard arguments last week in a case challenging a New Hampshire law that requires schools to set aside time daily for students to voluntarily recite the pledge.

As with a past case and a pending case out of California, the New Hampshire suit challenges the inclusion of the words "under God" in the pledge.

A federal district court upheld the New Hampshire statute in February, ruling that the law has the permissible secular effect of "teaching our country's history to the elementary and secondary pupils of this state" and that it does not have the effect of coercing children to support or participate in religion.

The Freedom From Religion Foundation appealed the ruling to the First Circuit, and it enlisted longtime pledge challenger Michael A. Newdow, of California, to argue its case.

Sheri Qualters, of The National Law Journal, has this account of the Sept. 9 oral arguments in Freedom From Religion Foundation v. United States. A recording of the oral argument is available on the 1st Circuit's Web site, although it takes a bit of navigation to reach the right place under the "Court Calendar" button.

The statute is being defended by the state of New Hampshire, and the U.S. Department of Justice intervened to defend acts of Congress that added "under God" to the pledge in 1954 and reaffirmed that version of the pledge in 2002.

Newdow, the physician and lawyer who has crusaded for years against "under God" in the pledge and the motto "In God We Trust" on the nation's money, maintains a Web site that has briefs and documents from both sides in the New Hampshire case.

In March, a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled against Newdow and a group of atheist parents who challenged school-led recitations of the pledge as an unconstitutional establishment of religion. The court said the pledge was predominantly a patriotic exercise. I blogged on the decision here.

Newdow is seeking review by a larger of panel 9th Circuit judges in the case involving the Rio Linda Independent School District in northern California.

Newdow was also behind an earlier case challenging the pledge in his own daughter's school, which the U.S. Supreme Court weighed in 2004 but disposed of on procedural grounds in Elk Grove Unified School District v. Newdow.

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A lawsuit backed by the American Civil Liberties Union challenges hundreds of fees charged by California public schools for classroom materials and extracurriculal activities. The suit says such fees violate the California Constitution's guarantee of free public education.

"Students who are unable to pay the fees or purchase the materials are disadvantaged academically and overtly humiliated by teachers and school officials," says the suit filed Friday in Los Angeles County Superior Court on behalf of two students. The suit alleges that one of the plaintiffs, identified as Jane Doe, was instructed not to highlight in borrowed books her family could not afford to purchase and was asked for an exam fee in front of other students.

Doe's unspecified Orange County school district required her to pay more than $440 annually in classroom and other fees, says the suit, which seeks class-action status and was organized by the ACLU of Southern California. The suit names the state as the main defendant, alleging that the state's "failure to monitor and ensure its public school districts' compliance with the free school guarantee" that has encouraged the proliferation of fees.

There is no official response to the suit yet, but in this article in today's New York Times, a lawyer for the San Diego Unified School District suggests that some fees listed on school Web sites may be a case of outdated information, but that others are probably not in compliance with state law.

Given tight school budgets, more schools nationwide have turned to fees to balance their budgets, and the California case is not the first court challenge. In 2006, the Indiana Supreme Court struck down a school district's $20 activity fee as a violation of the state constitution's free school guarantee, as Education Week reported here.

On his State EdWatch blog here, Education Week's Sean Cavanagh also writes about the lawsuit.

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A federal appeals court has upheld a Texas school district's policy requiring school visitors to submit identification for a background check to gain access to secure areas such as hallways and classrooms.

The Lake Travis Independent School District adopted the policy after a sex offender gained access to one of its schools and exposed himself to a child. The policy requires visitors to check in at the school office and submit a driver's license or state ID card. School staff members then use a private vendor's system that checks the ID information against all U.S. sex-offender databases.

A lawsuit filed by parents Larry and Yvonne Meadows claimed 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. After a run-in with administrators, the mother had refused to submit her identification to school officials and had to meet with her son's teachers in a conference room.

A federal district judge upheld the policy last year, which I reported on in the blog here.

In a Sept. 8 decision in Meadows v. Lake Travis Independent School District, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, unanimously upheld the policy.

"We readily acknowledge that parents do have a constitutional right to direct their children's education, but the Meadows' have put forth no case law for the proposition that this right extends so far as to include the unfettered right of a parent to visit all areas of a school campus while students are present," the court said.

Even if the parents' right to direct their children's education did extend to visiting all areas of a school, the district's background-check policy would withstand strict scrutiny because the district has a compelling interest in determining whether school visitors are sex offenders and the background checks are narrowly tailored, the court said.

(Hat Tip to NSBA's Legal Clips for the 5th Circuit decision.)

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With the school year opening in much of the nation, educators will soon be facing two of their traditional challenges: how to raise funds for school operations and how to avoid legal challenges.

A recent federal district court decision may actually help schools with both of those issues, even though the court ruled for a group of parents and against a school district on a very particular issue involving free-speech and establishment-of-religion questions in the realm of school fundraisers.

A federal district judge in Houston has ruled that a Texas school district engaged in viewpoint discrimination in violation of the First Amendment's free speech clause when it removed an explicit religious message as one option for greeting cards selected by parents as part of a school fundraiser.

U.S. District Judge Lee H. Rosenthal held that the district would not violate the First Amendment's prohibition of any government establishment of religion by allowing parents to have this choice of message on the holiday cards sold through a third-party vendor: "And she shall bring forth a son, and thou shalt call his name Jesus; for He shall save his people from their sins. - Matthew 1:21."

Pattison Elementary School in Katy, Texas, was selling the holiday cards as a fundraiser for art supplies. The program allowed parents to choose artwork created by their own child as well as one of several stock messages for inside the card. Among the messages the district did not seek to disallow were "Wishing you a Merry Christmas and a Happy New Year," "Peace on Earth/Let it begin in our hearts," and messages recognizing Hanukkah and Kwanzaa.

In a 2009 ruling in the case, the district court upheld the district's restrictions on when and where the fundraiser could take place, and it held at that time that the greeting-card fundraiser did not violate the establishment clause of the First Amendment.

On reconsideration, however, the court held in its July 30 opinion in Pounds v. Katy Independent School District that the free-speech rights of parents were infringed by the school's decision to black out the explicit religious message as a selection and that the district was not required by the establishment clause to take that action.

"The fact that the school sent the order form to the parents does not make the contents of the form pure government speech," Judge Rosenthal said. "It was evident that the form was prepared by a third party and that it was the third party that created the twelve preset messages for the parents to choose. ... The form created a forum for, or facilitated, the creation of the cards, which was clearly private expression."

Noting that the case has been active since 2006, Judge Rosenthal lamented the legal minefield that school officials must navigate when dealing with anything touching on religion in public education.

"As this case demonstrates, decisions in such seemingly innocuous and benign activities as elementary school parties and fundraisers for elementary school art classes too often lead to protracted litigation," the judge said.

A hat tip for this case goes to the National School Boards Association's Legal Clips, which recently added a frequently updated Web site to its other outlets, which include an weekly e-mail newsletter.

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