January 2011 Archives

In a case that has been watched closely in education and legal circles, a federal appeals court has upheld the consideration of race in undergraduate admissions to the University of Texas at Austin.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, on Tuesday upheld a program in which the university considers race as one factor for admission after Texas students from the top 10 percent of their high school classes claim places guaranteed by a state law.

The university reinstated race consideration after the U.S. Supreme Court upheld a race-conscious admissions program at the University of Michigan Law School in a 2003 decision known as Grutter v. Bollinger.

Before then, the state had been barred from using race in admissions by a 1996 decision by the 5th Circuit known as Hopwood v. Texas. In response to that decision, the state adopted its Top Ten Percent law, which was designed to boost racial and socioeconomic diversity at University of Texas campuses without express consideration of those factors in the admissions process.

The post-Grutter program is designed to augment the Top Ten Percent law by considering race as a factor in remaining freshman class places at the university. That program was challenged by two white students, Abigail Fisher and Rachel Michalewicz, who were denied admission to the 2008 entering class at the UT main campus in Austin.

A federal district court in Austin upheld the race-conscious program in 2009. In its Jan. 18 decision in Fisher v. University of Texas at Austin, the 5th Circuit court panel agreed that the program did not violate the 14th Amendment's equal protection clause.

"We are satisfied that the university's decision to reintroduce race-conscious admissions was adequately supported by the 'serious, good faith consideration' required by Grutter," U.S. Circuit Judge Patrick E. Higginbotham said in the main opinion.

Higginbotham said the Supreme Court's 2007 decision in Parents Involved in Community Schools v. Seattle School District, which limited the ways K-12 schools could consider race in assigning students to schools, did not retreat from the 2003 Grutter decision's emphasis on a "holistic university admissions program."

"Through the Top Ten Percent Law and Grutter-like plan, UT has increased its minority applicant pool in its effort to ensure that it serves as a flagship university for the entire state, not just Texans of certain backgrounds," Higginbotham said. "Cultivating paths to leadership for underrepresented groups serves both the individual and the public, sustaining an infrastructure of leaders in an increasingly pluralistic society."

Higginbotham warned, however, that the success of the Top Ten Percent law by itself in boosting minority enrollment at the university threatens to eventually weaken the state's justifications for the race-conscious program.

"In this dynamic environment, our conclusions should not be taken to mean that UT is immune from its obligation to recalibrate its dual systems of admissions as needed, and we cannot bless the university's race-conscious admissions program in perpetuity," Higginbotham said.

Judge Carolyn D. King wrote a short concurrence, and Judge Emilio M. Garza wrote a lengthy concurrence stating that he disagreed with the Supreme Court's Grutter decision, but that it was being correctly applied to the race-conscious Texas program.

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The U.S. Supreme Court on Tuesday declined to take up a legal challenge to how Massachusetts handled a curriculum guide on genocide and human rights.

A federal appeals court ruled last year that a decision by the state education commissioner to alter the advisory curriculum guide in response to political pressure did not violate the First Amendment.

The case involves a curriculum guide released in 1999, a year after the passage of a state law that required the state board of education to develop recommendations on curricular material about "genocide and human rights issues."

Then-Education Commissioner David P. Driscoll issued a draft of the guide that included a reference to the genocide of Armenians by the Ottoman Turkish empire in 1915 and following years. This prompted a request from a Turkish cultural group to add references to the "contra-genocide perspective."

Driscoll added such references and some links to Turkish Web sites, but he later removed them from the curriculum guide, citing the fact that the legislation required the state board to "address the Armenian genocide and not to debate whether or not it occurred," according to court documents.

A group of parents, students, teachers, and the Assembly of Turkish American Associations sued, arguing that the Turkish references were removed under pressure from elected officials kowtowing to the Armenian community. The suit said the removal of the "contra-genocide" references from the document violated their First Amendment rights to "inquire, teach and learn free from viewpoint discrimination."

The plaintiffs lost before both a federal district court and a panel of the U.S. Court of Appeals for the 1st Circuit, in Boston. Retired U.S. Supreme Court Justice David H. Souter sat on the three-judge panel, and he wrote the August 2010 opinion for a unanimous court that rejected the First Amendment claims. (I blogged about the appeals court decision here.)

Souter said the case boiled down to whether the document on human rights and genocide amounted to a "virtual school library," as the plaintiffs argued, with its lists of reference materials and Web sites, or was more like an element of the state curriculum, as the state contended.

If the library metaphor were accepted, Souter said, the decision the remove "contra-genocide" references from the document would be subject to the Supreme Court's 1982 decision in Board of Education, Island Trees Union Free School District No. 26 v. Pico.

In that case, the high court ruled for students who challenged the removal of certain books from a school library under orders from the local school board. A plurality of the court concluded that a school board could not remove books from a library for the purpose of denying students access to ideas unpopular with board members.

Souter said Pico did not apply to the Massachusetts case because the decision to remove the contra-genocide references was not forced from above but was made by the same official—the state commissioner—who had inserted them earlier.

Souter said that even though the guide has been made available to students, "the overwhelming obvious point of the guide is to provide teachers with a framework and sources of materials for teaching 'genocide and human rights issues' as a subpart of the existing curriculum, for which no standard text or anthology is assumed to be available or sufficient."

In their appeal to the U.S. Supreme Court in Griswold v. Driscoll (Case No. 10-624), the plaintiffs argued that the 1st Circuit court ignored the effects of the explosion in online libraries and Internet educational resources.

"Ignoring modernity, Google, and the explosion of online books, the First Circuit balked at the natural application of Pico to Internet-based school libraries, which are even now displacing brick-and-mortar libraries as electronic books replace hard copy publications," the appeal said.

The justices declined without comment to hear the appeal.

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A student's vulgar insults of a teacher did not amount to "fighting words" and thus he could not be adjudicated under an Arizona law making it a crime to abuse school personnel, the state's highest court has ruled.

The unanimous ruling by the Arizona Supreme Court came in the case of a student identified only as Nickolas S. His age and school were not identified in court papers.

The student called the teacher supervising an on-campus suspension program a "stupid bitch" and a "f------ bitch." He used such language first while standing about 10 feet from the teacher, and again as he left the classroom.

Nickolas was suspended for 10 days and later charged as a juvenile under the state law making it a misdemeanor to "abuse" teachers and other school workers. The statute had once barred "insults" and "abuse" of teachers, but it was amended in 1989 to cover only abuse of school personnel.

Because the student faced juvenile charges based purely on his speech, two lower courts and the Arizona Supreme Court agreed that speech directed toward a teacher could amount to abuse only if it fell under the "fighting words" doctrine recognized by U.S. Supreme Court decisions.

Fighting words are those that can be suppressed under the First Amendment because they would provoke an immediate violent reaction from the target of the speech. A state appeals court said a reasonable person might react violently to the epithets used by Nickolas, and it upheld an adjudication of delinquency against him.

But in its Jan. 10 decision in In Re Nickolas S., the state supreme court reversed that adjudication.

"Considering the circumstances in which Nickolas uttered his words, we do not believe that his insults would likely have provoked an ordinary teacher to exchange fisticuffs with the student or to otherwise react violently," the opinion by Justice W. Scott Bales said.

"We do not believe that the natural reaction of the average teacher to a student's profane and insulting outburst, unaccompanied by any threats, would be to beat the student," Bales continued. "Arizona teachers exemplify a higher level of professionalism, as the conduct of the teacher involved here reflected. Nickolas's
conduct, although reprehensible, is properly punished through school discipline or possibly prosecution under other statutes rather than by characterizing it as fighting words likely to provoke a violent reaction by his teacher."

In a concurrence, Justice A. John Pelander stressed that he did not believe the court's ruling meant that the student's epithets were protected by the First Amendment.

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The New York City school district did not violate the privacy rights of a teacher when it publicly disclosed her medical condition, a federal appeals court has ruled.

A panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, ruled 2-1 on Tuesday that the disclosure of the teacher's fibromyalgia, a disorder that causes muscle pain and fatigue, in an investigative report made public on the Web did not violate her rights.

The case involves Dorrit Matson, who was a music teacher at a Manhattan public school in 2004 when she was scrutinized by the New York City school system's special commissioner for investigation for abuse of sick leave.

The commissioner issued a report in 2005 concluding that Matson had conducted a church symphony orchestra while on sick leave from her teaching job. Matson's doctor asserted to the commissioner's office that the teacher's conditions of fibromyalgia and/or chronic fatigue syndrome were brought on by stress at her school and it was not inconsistent that she could feel well enough to conduct the church symphony when she was removed from the source of her stress.

But the special commissioner concluded that Matson had abused the sick leave policy, and the report disclosing her condition was published on the inspector general's website. (Matson's employment in the New York City schools later ended, but the 2nd Circuit's opinion says the record is unclear about the circumstances for that.)

Matson sued the school system, claiming that it improperly disclosed her medical condition and that the disclosure made it difficult to get another job. She sought $2 million in damages.

A federal district court dismissed Matson's suit, and in a Jan. 11 decision, the 2nd Circuit court panel affirmed. The majority said that 2nd Circuit case law makes clear that the constitutional privacy interest in medical information about an individual varies with the condition.

People suffering from HIV or AIDS, or those who are transsexual, have been found to have a privacy interest in keeping their conditions from disclosure because of the discrimination and intolerance they face, the majority said.

"We discern no evidence in the record revealing societal discrimination and intolerance
against those suffering from fibromyalgia," Judge Roger J. Miner said in Matson v. Board of Education of the City School District of New York.

The court also held that the special commissioner's frequent public release of its reports suggests that, "rather than publishing Matson's report to embarrass or humiliate her, the SCI published the report on its website as part of its policy to inform the public of its efforts to investigate instances of fraud within the New York City public school system."

In dissent, Judge Chester J. Straub said Matson's conditions—he referred to both fibromyalgia and chronic fatigue syndrome—should be afforded privacy protection.

"It is entirely plausible that the disclosed information is of the type that is highly personal and potentially embarrassing, such that one would and normally should be able to choose whether to inform others that she suffers from these serious conditions," Judge Straub said.

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In a case with implications for school board members nationwide, the U.S. Supreme Court has agreed to decide whether First Amendment free speech concerns are raised when states require local elected officials to recuse themselves from voting on certain issues for ethics reasons.

The justices late on Friday accepted an appeal from the Nevada Commission on Ethics, a panel that enforces a state ethics law on local members of city councils, school boards, and other agencies. The commission appealed a July 2010 ruling by the Nevada Supreme Court that invalidated a portion of the state recusal statute on free speech grounds.

The commission had censured Michael A. Carrigan, a Sparks, Nev., City Council member, for failing to recuse himself from a vote for a hotel and casino project for which the developer had retained a close friend of Carrigan's. Carrigan appealed, and a state trial court upheld the ethics provisions under a balancing test from a 1968 U.S. Supreme Court decision about public-employee speech, Pickering v. Board of Education.

But the state's highest court held that it was inappropriate to apply the Pickering test and that "voting by an elected public officer on public issues is protected speech under the First Amendment."

The Nevada Supreme Court instead applied strict scrutiny to the ethics provision and held that it was not narrowly tailored because it did not guide elected offices as to which of their personal relationships required recusals.

In its appeal to the U.S. Supreme Court, the Nevada ethics panel said "lower courts have splintered over whether public officials' votes amount to protected speech and, if so, which standard of review applies to regulations on official voting."

The justices on Jan. 7 agreed to hear the appeal in Nevada Commission on Ethics v. Carrigan (Case No. 10-568). The court will hear arguments in the case in April and will likely rule by the end of June.

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Three Maine school district employees who were sued for defamation after they criticized a principal's actions should have been allowed to raise a defense under a state law limiting strategic litigation against public participation, or SLAPP suits, a federal appeals court has ruled.

A three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, ruled unanimously for the school employees who were sued by Pat Godin, the former principal of Fort O'Brien Elementary School in Machiasport, Maine. The three employees had made statements to district administrators that Godin had acted abusively towards students. A 2008 school district investigation found that the charges of abusive conduct were not supported, court papers say.

However, Godin's contract was terminated early, purportedly for budgetary reasons, and the principal sued the employees for defamation and the Machiasport school district for alleged violation of her due process rights.

A federal district court ruled last year that the individual defendants could not raise Maine's anti-SLAPP statute in federal court because it conflicted with federal rules of civil procedure. Anti-SLAPP laws are meant to give defendants procedures to quickly dismiss meritless litigation that chills public participation and protected speech.

In its Dec. 22 decision in Godin v. Schencks, the 1st Circuit court panel ruled that the individual defendants should have been allowed to raise the anti-SLAPP defenses to the defamation suit.

"Because [Maine's anti-SLAPP law] is so intertwined with a state right or remedy that it functions to define the scope of the state-created right, it cannot be displaced" by federal civil procedural rules, the appeals court said.

The court remanded the case to the district court for further proceedings.

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A full federal appeals court has agreed to hear fresh arguments in a case weighing whether elementary school students have First Amendment rights to distribute items with religious messages to their classmates.

The full U.S. Court of Appeals for the 5th Circuit, in New Orleans, announced on Dec. 17 that it would rehear Morgan v. Swanson, a case involving the scope of free speech rights of elementary school students.

The announcement came while the School Law Blog was on holiday hiatus. Hat Tip to How Appealing for noticing the order.

As I reported in the blog here, a three-judge 5th Circuit court panel in November upheld the denial of qualified immunity of two elementary school principals in the Plano, Texas, school district.in a lawsuit that challenges restrictions on the distribution of religious items by students to their classmates at holiday parties and similar functions. One such item was a pencil with the motto, "Jesus is the Reason for the Season."

The appeals panel said school officials should have known from Supreme Court decisions and other 5th Circuit rulings that elementary school students have First Amendment speech rights as long as their speech is non-disruptive. The panel said the rights of elementary students may not be "coextensive" with those of high school students, but the younger students do have such rights.

The full 5th Circuit's order granting rehearing in the case is here.

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