March 2011 Archives

A federal appeals court ruled on Tuesday that tenured Chicago teachers who were laid off last year for economic reasons have a due-process right to show they are qualified for vacancies in the school district.

A panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, voted 2-1 to mostly uphold a federal district court injunction backing the claims of the nearly 1,300 laid-off teachers and the Chicago Teachers Union.

"The teachers contend that they are entitled to a recall procedure," says the majority opinion by Judge Ann Claire Williams, in Chicago Teachers Union v. Board of Education of the City of Chicago. "We agree. The teachers should be given a meaningful opportunity to show that they are qualified for new vacancies for a reasonable period of time."

The opinion didn't define a "reasonable period of time." The court noted that more than 700 of the teachers have already been rehired to fill vacancies in the 409,000-student school system. But all the laid-off teachers have a property interest in their continued employment that is protected by the due-process clause of the 14th Amendment, the court said. Illinois statutory and case law limit the Chicago school board's discretion on whether it may make layoffs without a recall procedure, the court added.

It wasn't enough that the school district offered laid-off teachers two job fairs, a resume-writing workshop, and a Web site listing vacancies, the court said. The appeals panel agreed with the district court that the school district should be allowed to develop its own recall procedure rather than have one imposed by the court. But it narrowed the injunction by removing a requirement that the district consult with the teachers' union on the procedure.

"Although consultation with the union may expedite the process of promulgating the rules, there is nothing in [the relevant state law] that requires cooperation with the union, and we decline to impose such a requirement," Judge Williams said.

Judge Daniel A. Manion dissented on the main issue of whether the teachers had recall rights.

"Here, the teachers are all laid off," Judge Manion said. "In the board's words, they have been honorably discharged. The point is they no longer have a job, and the process they are owed under the Due Process Clause has been honored—the teachers have not claimed they were laid off without due process. No property rights followed the teachers out the door."

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The U.S. Supreme Court on Monday agreed to decide whether a private school teacher involved in secular and religious instruction falls under a widely recognized exception to employment-discrimination laws for ministers and other church leaders.

The appeal by a Lutheran church and elementary school in Redford, Mich., was joined by a number of religious organizations and scholars, who argued that there are widely disparate rulings in the lower courts about whether religious-school teachers are subject to the "ministerial exception" to job-bias laws.

The exception, recognized by virtually every federal circuit court of appeals, bars lawsuits that interfere in the relationship between a religious organization and employees who perform religious functions. It is separate from the specific religious exemption in Title VII of the Civil Rights Act of 1964, which applies to any employee of a religious organization, but only with respect to claims of religious discrimination.

The federal appeals courts are split on the legal standard to be applied and the scope of the employees covered by the ministerial exception.

The case accepted by the Supreme Court, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (No. 10-553), involves Cheryl Perich, a 4th grade teacher at the school who got into a dispute over her return from a medical leave for narcolepsy in the 2004-05 school year.

Perich was a "called teacher" under the Lutheran Church-Missouri Synod, which meant she was trained in the church's theology and selected for her job by voting members of the church. She taught a secular 4th grade curriculum, but also taught religion classes on some days and led devotional exercises, among other religious duties, according to court papers.

Amid the dispute over her medical leave, the church rescinded her "call," effectively terminating her. She filed a charge of discrimination and retaliation with the federal Equal Employment Opportunity Commission, which took her side and filed a retaliation suit against the church and school under the Americans with Disabilities Act.

A federal district court ruled for the church, but in March 2010, a panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled 2-1 for the teacher. The court applied a "primary duties" test, and held that Perich was not subject to the ministerial exception because she "spent the overwhelming majority of her day teaching secular subjects using secular textbooks." The court also said that "called" and "lay" teachers at the school had primarily the same duties.

The church and school appealed to the Supreme Court with the support of the Becket Fund for Religious Liberty.

"The decision below conflicts with this court's cases forbidding secular courts from interfering in religious disputes," says the brief on the church's behalf, co-written by Douglas Laycock, a prominent law and religion scholar and a professor at the University of Virginia. "The courts here have no business reinstating a commissioned minister and called teacher who teaches religion and leads children in worship."

Among the groups filing friend-of-the-court briefs on the church's side were the Association of Christian Schools International, the Council of Hindu Temples of North America, and the Union of Orthodox Jewish Congregations of North America.

The EEOC filed a brief urging the court not to review the case, noting that the 6th Circuit had conducted a "fact-intensive" review of Perich's duties at the school.

"The fact that Perich led chapel twice a year in rotation with other teachers did not make her a minister for purposes of the ministerial exception, the [6th Circuit] court noted," the EEOC brief said.

In a brief filed on behalf of Perich, her lawyer also urged the high court not to take the case, saying that religious organizations are seeking "wide leeway to avoid the federal statutory prohibitions on discrimination."

The court will hear arguments in the case during its term that begins next October.

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The U.S. Supreme Court appeared sharply split on Wednesday over a case about the police interrogation at school of a 13-year-old student suspected of committing neighborhood thefts.

More-liberal members of the court aggressively questioned the circumstances surrounding the 2005 interrogation of a boy identified as J.D.B., whose statements were used against him and who was judged delinquent in a juvenile proceeding.

"This 7th grader was marched by the school security officer" out of his classroom and into a windowless room, where he was interrogated in the presence of four adults, including a juvenile investigator and an assistant principal, Justice Ruth Bader Ginsburg pointed out to North Carolina's attorney general, who was defending the questioning, in part by suggesting that public school students were not typically free to leave classrooms. "That is not a normal part of the school day." Ginsburg added.

The high court's conservatives, however, appeared more sympathetic to police officers and the idea that the court's longstanding Miranda rules offer objective guidance about when a suspect is in custody and must be given the familiar warnings about their rights.

"Sympathetic cases can make bad law," said Justice Samuel A. Alito Jr., who worried that police officers and judges evaluating their conduct would have to try to put themselves into the mind of a teenager.

The oral arguments in J.D.B. v. North Carolina (Case No. 09-11121) underscored that while the school setting of the interrogation was a significant fact, the legal issue at stake was effectively of importance to the police and the courts. The issue involves whether age should come into consideration when determining whether a youth was in custody and thus entitled to the warnings about constitutional rights under the 1966 Supreme Court case of Miranda v. Arizona.

J.D.B. "was not advised he was free to leave or free not to answer questions until he had already incriminated himself," Barbara S. Blackman, the youth's lawyer, told the justices. "If a child is involved in a [custody inquiry], then a court must take that into account."

J.D.B. was suspected of breaking into several neighborhood homes in Chapel Hill, N.C., and stealing jewelry and a digital camera. He was questioned in a school conference room by a Chapel Hill juvenile-offenses investigator, a uniformed police officer assigned to the middle school, and an assistant principal, who encouraged the boy to "do the right thing, because the truth always comes out in the end."

The boy confessed to the thefts, and his statement was used against him in a juvenile proceeding in which he was judged to be delinquent.

The North Carolina Supreme Court said that taking the boy's age and his status as a special education student into account would turn the Miranda custody inquiry into a subjective one, instead of the objective inquiry that the U.S. Supreme Court's precedents require to guide everyday police work. Under those precedents, the custody inquiry generally turns on whether a "reasonable person" in the suspect's situation would perceive that he or she was free to leave the police interrogation.

Roy Cooper, North Carolina's attorney general, told the justices that requiring police officers and courts to take the age of the suspect into consideration "fundamentally changes the 'reasonable person' test -- makes it complex, makes it more illogical."

Justice Stephen G. Breyer asked why it would be such a burden on the police to advise suspects who were obviously minors that they were free to leave before launching into questioning.

Cooper said that would be a problem for the many school resource officers who now patrol school hallways, building relationships with students and often informally questioning them about misconduct or crimes.

"Under [J.D.B.]'s theory, a school resource officer who is going to take a juvenile into a room to talk about a stolen cell phone or bullying, the first thing he's got to say is, 'You have the right to remain silent,'" Cooper said.

Eric J. Feigin, an assistant to the U.S. solicitor general who was supporting the state, said, "The main problem here is, is it going to create more confusion for officers" to take age into account?

Justice Antonin Scalia voiced the often-unstated foundation of modern police work: that officers don't always give Miranda warnings right away when they can avoid it because that would discourage a fair number voluntary confessions to crimes.

Feigin agreed. "You don't want the police to have to give Miranda warnings every time they open their mouths," he said.

Two justices who lean conservative were a bit difficult to read at today's arguments.

Justice Anthony M. Kennedy wondered whether giving Miranda warnings to youths of J.D.B.'s age or younger "might terrify them."

And Chief Justice John G. Roberts Jr. noted that one object of the court's Miranda rules was to "provide clear, objective guidelines about what the police are supposed to do." But he wondered if it was enough to tell a student such as J.D.B. that he was free to leave the school interrogation room.

"Maybe a 13-year-old doesn't really believe think that's true," the chief justice said. "Or maybe a 13-year-old really doesn't feel that he can leave if he's got the vice principal there and they want to talk."

A decision in the case is expected by late June.

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The U.S. Supreme Court has generally curtailed First Amendment protections in recent years for the speech of public employees, including teachers, particularly speech on matters of private concern or job-related communications.

A case argued before the justices on March 22 raised the question of whether another provision of the First Amendment—the petition clause—provides a different standard or stronger protection for public-employee workplace grievances.

The clause says Congress shall not abridge the right of the people "to petition the government for a redress of grievances." In an argument that ranged from the petition practices in England at the time the Magna Carta was adopted in 1215 to the recent battle in Wisconsin over public-employee collective bargaining, the question for the justices seemed to be whether the petiion clause covers every workplace grievance.

"We have said that [a] ... public employee's right to speech can be regulated, can be confined, can be restricted beyond what the state could do for a nonemployee," Justice Anthony M. Kennedy said during Borough of Duryea v. Guarnieri (Case No. 09-1476). "Are you saying that if the petition clause is involved, there is no right to restrict what the employer does?"

Eric Schnapper, a University of Washington law professor who is representing a small-town Pennsylvania police chief who sued his employer under the petition clause, said the government's interests would need to be balanced against the rights of employees.

Schnapper represents Charles J. Guarnieri, the police chief of Duryea, Pa., who clashed with the borough council and was dismissed. He won his job back in a grievance procedure, but the council then sought to impose directives on him affecting his pay and his working conditions. Guarnieri then sued under the petition clause, and a jury ruled that the borough council had retaliated against him for winning the earlier grievance.

The U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, largely upheld the trial court victory for the police chief. The appeals court rejected the view that petition-clause cases concerning only private matters, not matters of public concern, were not valid.

Underlying the case is the Supreme Court's jurisprudence on public-employee free speech, such as Pickering v. Board of Education, the 1968 case that held that a teacher could not be dismissed for speaking out publicly on a matter of public concern, and Connick v. Myers, a 1983 case that said a survey about working conditions circulated among employees in a district attorney's office was not protected because it was a matter of personal interest, not public concern.

The National School Boards Association filed a friend-of-the-court brief supporting the borough, and arguing that a decision for the police chief could "wreak havoc" on relationships between schools and their employees.

"Already-stretched school district officials lack the time, resources, and expertise necessary to discern between speech and 'petitions,' leading to even more hesitance about disciplining employees in order to avoid the possibility of constitutional claims alleging retaliation," the NSBA brief says.

Schnapper, meanwhile, told the justices that the First Amendment's free speech and petition clauses serve somewhat different purposes.

"The petition clause was not adopted, like the free speech clause, to foster a vigorous public debate," he said. "The purpose of the petition clause ... is to enable an individual to seek relief for a wrong. ... It's about people's ability to seek redress."

Daniel R. Ortiz, the lawyer for the borough of Duryea, said that if the court accepted the argument for separating petition-clause cases from the public-concerns test laid out in the Connick case, then it would "constitutionalize, under the petition clause, large parts of the law of public employee discipline, and thereby grant to public employees a broad constitutional employment right that private employees do not enjoy."

The borough was supported by the Obama administration, which argued that there was a critical difference between petitioning the government as a sovereign power and petitioning the government as an employer.

"In that latter situation, Connick has been critical in providing a bulwark against allowing run-of-the-mill employment disputes from becoming constitutional cases in federal court," said Joseph R. Palmore, an assistant to the U.S. solicitor general.

Justice Elena Kagan asked Palmore a hypothetical question that called to mind recent events in Wisconsin.

"Suppose a state legislature passes a law depriving all state employees of collective-bargaining rights, and a state employee files a lawsuit saying that this law violates the state constitution, and the state employee is thereupon fired. Is that a matter of public concern or not?" Kagan said.

Palmore said the subject of the employee's speech, that the legislature's action was illegal, would suggest that it was about a matter of public concern.

What about a class action alleging systemic discrimination in the public workplace? Kagan asked.

That would be a matter of public concern, Palmore said, similar to the Supreme Court's 1979 decision in Givhan v. Western Line Consolidated School District, which upheld speech protections for a teacher who complained privately to her principal about problems with the district's desegregation plan.

While it was far from clear that Kagan or the court's other more liberal members were likely to side with the police chief, the court's conservatives seemed to be in the employer's corner.

"All of our cases have equated the petition clause reach with that of the First Amendment [speech clause], and our cases under the First Amendment have made clear that we don't want to constitutionalize the employee grievance procedures," Chief Justice John G. Roberts Jr. told Schnapper.

Justice Antonin Scalia said he was unconvinced that filing a lawsuit for retaliation even came in as a form of petitioning the government under the First Amendment.

"I find it difficult to believe that lawsuits are covered by the petition clause when it is very clear that the Congress can prevent all lawsuits against the federal government by simply refusing to waive sovereign immunity," Scalia said.

Schnapper said the petition clause could be read to cover creations of the government, from law courts to arbitration proceedings.

"Back at the time of Magna Carta, petitions only went to the king," Schnapper said. "Over time, the British government and ultimately the American government developed other mechanisms that were simply more efficient."

A decision in the case is expected by late June.

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Nearly 40 years ago, the U.S. Supreme Court issued a landmark ruling that a state compulsory education law infringed on the religious rights of Amish parents who did not wish to send their children to school beyond the 8th grade.

The case was Wisconsin v. Yoder, decided on May 15, 1972. On Wednesday evening at the Supreme Court, a scholar who wrote a book about the case discussed the facts, the legacy, and some surprising outcomes of the legal battle between the state and the Old Order Amish community of New Glarus, Wis.

"They had no idea what they were getting themselves into," the scholar, Shawn Francis Peters of the University of Wisconsin-Madison, said about the three Amish fathers who were persuaded to challenge their misdemeanor criminal charges of violating the compulsory education law in the late 1960s.

Peters addressed about 100 people in the courtroom as part of a lecture series of the Supreme Court Historical Society. He was introduced by Justice Samuel A. Alito, Jr., as all such events in the courtroom require the presence of at least one justice.

Peters, a senior scholar at UW-Madison's Center for Educational Opportunity, is the author of The Yoder Case: Religious Freedom, Education, and Parental Rights. The 2003 book is part of an excellent series called Landmark Law Cases and American Society by the Lawrence, Kan.-based University Press of Kansas.

He noted that the court's decision in Yoder has been the subject of voluminous scholarly analysis, although its central holding that a religious sect may be excused from a generally applicable law has been weakened by such later cases as Employment Division v. Smith, the peyote case.

"As we approach the 40th anniversary of Yoder, it has lost some of its vitality as judicial precedent," Peters said. "It just isn't as weighty as it use to be. ... Still, the case is one that every law student learns about in con[stitutional] law class."

Peters said he would focus his lecture on the case's factual origins, particularly involving named respondent Jonas Yoder, who had moved to New Glarus from Ohio and was a hog farmer.

The Old Order Amish community had only developed around New Glarus in the mid-1960s, and some in the small town south of Madison were wary of the religious sect.

"These were the most Amish of the Amish, and because of that, not all people in the area welcomed them with open arms," Peters said.

The school controversy started with Yoder objecting to the local public schools' requirement that his daughters participate in gym class, which involved changing from their old-fashioned garb into gym uniforms, as well as a requirement that they shower in the school after gym. Yoder was uncomfortable with his daughters engaging in such immodest, worldly activities.

By August 1968, the Amish around New Glarus opened their own religious primary schools, going up the 8th grade. They had a deeply held belief that having their children attend high school grades, particularly in the public schools, would expose them to worldly influences and endanger their own religion, as well as their salvation.

When the local school superintendent realized that the Amish grade school children were no longer attending public schools, he clumsily asked their parents to return them at least until mid-September of that fall, when school census counts were completed. The school district faced the loss of some $20,000 in state aid because of the exodus of the Amish pupils, Peters' book notes.

"It was a ruse that was completely unacceptable to the Amish," Peters said in the lecture. Whether he was motivated by the sect's refusal to go along with him or not, the superintendent pushed county officials to charge three of the fathers with violating the compulsory education law for keeping their high school-age children out of school.

Yoder and the other parents had to be persuaded to accept legal assistance from a group called the National Committee for Amish Religious Freedom. The group enlisted Pennsylvania attorney William Bentley Ball, who had argued religion cases before the Supreme Court and was active in efforts to bring about government aid for parochial schools.

Ball called expert witnesses and established a detailed record in the Wisconsin trial court about Amish religious beliefs. The parents lost in that court and were fined $5 each, but Ball was aiming to build a case for higher courts.

The Wisconsin Supreme Court ruled in favor of the Amish in 1971, holding that the state violated the free exercise of religion rights of the parents. The state attorney general, fearful that the decision would prompt other challenges to school regulations, appealed to the U.S. Supreme Court.

Only seven members of the high court participated in the case in the 1971-72 term, with Justices Hugo Black and John Marshall Harlan having recently stepped down for health reasons. Chief Justice Warren E. Burger wrote the majority opinion for six of the justices.

"A state's interest in universal education, however high we rank it, is not totally free from a balancing process when it impinges upon ... the traditional interest of parents with respect to the religious upbringing of their children," Burger wrote. "The conclusion is inescapable that secondary schooling, by exposing Amish children to worldly influences in terms of attitudes, goals, and values contrary to beliefs, and by substantially interfering with the religious development of the Amish child and his integration into the way of life of the Amish faith community at the crucial adolescent stage of development, contravenes the basic religious tenets and practice of the Amish faith, both as to the parent and the child."

Justice William O. Douglas dissented in part, saying the court failed to take into account the rights of the Amish children, and that their views about whether they wished to attend high school deserved consideration.

The Supreme Court decision ended a tide of discord between school authorities in several states and Amish communities. While Ball and other religious rights advocates hailed the decision, the reaction in the Amish community in New Glarus was more subdued, Peters said.

Jonas Yoder welcomed a reporter he knew into his home and listened to a radio news report about the decision over the reporter's transistor radio. But Yoder quickly tired of other reporters seeking his reaction, and the attention he received did not sit well with many of his fellow Amish, Peters said.

"The attention clearly distressed Jonas Yoder," Peters said. "He said, 'For me, I wish it had been someone else.'"

The New Glarus Amish community dispersed in the years following the decision, for a multitude of reasons, Peters said. The Yoder case was one of them, as "progressive" members of the sect clashed with more conservative members over whether it had been right to engage in the court fight.

Within a few years, most of the estimated 200 members of the Amish community had moved away, including the Yoders. (For his book, Peters sought to track down Yoder in Missouri, but was informed by Amish community members that the author was probably the last person with whom Yoder would wish to speak.)

"It seems that a case designed to help preserve a community actually helped rip it apart," Peters said. "In trying to escape worldliness, [the Amish] ran headlong into it."

* * *
The Supreme Court Historical Society's Leon Silverman Lecture Series has three more lectures this spring devoted to "the people behind the Supreme Court's religion cases." One involves another education case: On May 10, the lecture will be about the 1963 case of Abington School District v. Schempp, one of the court's school prayer cases. Noted law and religion scholar Douglas Laycock of the University of Virginia will deliver that lecture.

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Over a vigorous dissent by one judge, a full federal appeals court on Monday refused to reconsider a panel's decision that upheld a Tennessee school district's prohibition on any student display of a Confederate flag.

The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, declined to re-examine a decision of a three-judge panel of the court in favor of the Anderson County, Tenn., district and its ban on Confederate symbols.

The panel ruled last November that the school district was justified in barring Confederate symbols because the community had never overcome racial tensions since the district was desegregated in the 1950s. A concurring judge said a Confederate flag on a T-shirt was likely perceived by many students as a "statement of racial hostility." (I blogged about the panel decision here.)

In his dissent from the denial of rehearing in Defoe v. Spiva, U.S. Circuit Judge Danny J. Boggs said the panel decision "eviscerates the core holding in Tinker v. Des Moines Independent Community School District that student speech can be suppressed only based on its disruptive potential, not on its content."

Boggs said the panel misread the U.S. Supreme Court's 2007 decision in Morse v. Frederick, which carved out an exception from Tinker's student speech protections for messages perceived as promoting illegal drug use.

"Morse does not give the slightest hint that schools are authorized to suppress any speech that either they or an appellate court deems contrary to the school's mission or core values," Boggs said.

He said the panel's view that Confederate symbols are racially hostile and contemptuous might be true in some circumstances, but that characterization wasn't proved in the Anderson County case. Under the panel's logic, an American flag might be perceived as racially hostile to recent immigrants, or a Mexican flag in a U.S. public school could be taken as hostile to "Anglo" students, Boggs said.

"Similarly, T-shirts with legends of Che Guevara or Mao Tse-Tung could certainly be taken by many as displaying hostility and contempt toward their victims and the victims' supporters or descendents," Boggs said. "May those images too be banned?"

"Surely what is revealed by these examples ... is that the law in the Sixth Circuit is now that 'nice symbols' (e.g., black armbands, which I imagine the majority would concede are still controlled by Tinker) must be permitted, but 'naughty symbols' (e.g., the Confederate flag) can be banned without further analysis," Boggs said. "This is directly contrary to Tinker and, indeed, to any type of fidelity to First Amendment doctrine."

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A federal judge has dismissed a lawsuit seeking to allow a Kansas school district to raise local taxes beyond what the state school finance system permits.

A group of parents and students in the Shawnee Mission school district, in the Kansas City suburbs, sued state officials, arguing that the "local option budget cap" that limits the funds a district may raise locally discriminates against wealthier districts in violation of the 14th Amendment's equal-protection and due-process clauses.

U.S. District Judge John W. Lungstrum of Kansas City, Kan., ruled that because the local option budget cap could not be severed from the rest of the state's school-finance law, ruling against it would strike down the state's entire school-finance system. The plaintiffs' goal could not be redressed by striking down the entire scheme, and thus they lacked standing to bring their suit.

The judge also said there was no other authority in Kansas law allowing a school district to raise taxes locally.

"Plaintiffs have not shown that their school district possesses any authority, outside of the [school finance] act, to impose local taxes," Judge Lungstrum said in his March 11 decision in Petrella v. Brownback.

Lawyers for the plaintiffs indicated in Kansas newspapers that the ruling would be appealed.

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A federal appeals court has upheld the discipline of a Mississippi student who was accused of hacking into the computer system of his middle school and initiating a brief "denial of service" attack.

The panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, also ruled against the boy's mother, who was fired from her job as a school secretary after protesting the action taken against her son and threatening to sue the school district.

The unanimous March 10 decision came in the case of an 8th-grader at Pontotoc County Middle School who used his mother's computer at a nearby elementary school to e-mail various computer technicians in the district about key logging, hacking, and denial-of-service attacks. The boy's interests raised suspicions among district computer technicians, with one warning his superiors, "This student has issues and in my opinion needs to be off our network and SURELY does not need to be using his mother's
computer to send emails."

One morning in 2008, the school district's computer network experienced problems, and officials suspected the student was behind them.

According to court papers, school officals told the boy that because of his hacking, his mother could lose her job, he could go to jail, and his plans for college were over. The boy denied involvement with the hacking. The school district suspended the boy, citing his possession of a key logger program and his admission that he had bypassed security on a school computer to set up a DOS prompt. He was later reassigned to an alternative school.

After teachers expressed concern about exposure of their personal information, the school district reassigned the boy's mother from the elementary school secretary's job to one that did not involve access to computers.

This led to complaints from the mother that her son did not receive due process and threats of a lawsuit, which resulted in the district dismissing the mother.

The family sued over the boy's discipline and the mother's dismissal, but they lost in both a federal district court and the 5th Circuit panel.

In its unanimous opinion in Harris v. Pontotoc County School District, the panel said the boy and his parents were adequately informed of the charges against him and given numerous opportunities to tell their side of the story.

"That process was sufficent" under the U.S. Supreme Court's 1975 decision in Goss v. Lopez, the 5th Circuit court said.

"The truth of these charges is not the question in evaluating whether Goss has been satisfied," the court said. "Instead, the issue is whether [the boy] was adequately informed of the specific charges from which the suspension derived, and whether he was given an opportunity to present his side of the story."

The court also rejected the mother's claim that she was retaliated against for her complaints in violation of her First Amendment free speech rights. The court said the mother was not speaking about matters of public concern.

"The evidence in the record shows only a mother who complained about the treatment her child received in a discrete incident and an employee who was upset at being reassigned," the court said. "Both matters are personal."

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A federal appeals court has upheld $25 damages awards to two Illinois students who were barred by school officials from wearing T-shirts that said "Be Happy, Not Gay" to protest a day meant to promote gay tolerance.

Tuesday's unanimous ruling by a panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, is a follow-up to a 2008 decision by the same panel granting students Heidi Zamecnik and Alexander Nuxoll an injunction allowing them to wear the T-shirts at Neuqua Valley High School in Naperville, Ill.

In the earlier decision, which I blogged about here, Judge Richard A. Posner said that the phrase "Be Happy, Not Gay" on a student's T-shirt was not derogatory or demeaning to other students.

The students sought to wear the shirt on the "Day of Truth," a conservative response to the "Day of Silence," which supports gay tolerance and is backed by the Gay, Lesbian and Straight Education Network.

The new 7th Circuit decision comes after a federal district court conducted further proceedings and ruled for the students. The district court expanded its injunction to cover any student at the high school, and it awarded to two plaintiffs $25 each in damages.

Judge Posner wrote the new opinion as well.

"[A] school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality," the judge wrote in Zamecnik v. Indian Prairie School District No. 204. "The school argued (and still argues) that banning 'Be Happy, Not Gay' was just a matter of protecting the 'rights' of the students against whom derogatory comments are directed. But people in our society do not have a legal right to prevent criticism of their beliefs or even their way of life."

There was no separate statement in the new opinion from Judge Ilana Rovner, who in the earlier decision agreed with the preliminary injunction but took issue with Judge Posner's characterization of youths as making only a "modest" contribution to the marketplace of ideas.

Judge Rovner said in her 2008 concurrence that youths "are leading a broad, societal change in attitude towards homosexuals," and for Judge Posner to "blithely dismiss their views as less valuable than those of adults is contrary to the values of the First Amendment."

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The U.S. Supreme Court today took up what potentially could be a major test involving the rights of children when interacting with the police and other government investigators in schools.

But in the case over whether school interviews of children by investigators constitute unreasonable "seizures" under the Fourth Amendment, the arguments today quickly stumbled over procedural issues.

"It just seems like the whole case has evaporated," Justice Ruth Bader Ginsburg told Oregon Attorney General John R. Kroger early in the arguments in Camreta v. Greene (Case No. 09-1454). She was referring to the fact that the child in the case, identified as S.G., has not sought money damages from the two investigators who were found to have violated her rights.

The justices spent much of the hour debating whether the appeal presented a live case or controversy, as required by federal law. By the end, the court seemed inclined to throw out the appeal or set aside a federal appeals court ruling which had held that child-abuse investigators must have a court order or parental permission to interview a child at school about potential sex abuse at home.

Kroger said setting aside the ruling by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, would be acceptable since it would wipe the warrant or parent consent requirement off the books.

"Child-protective workers face an enormous burden to acquire a warrant before even talking to the child," Kroger said.

The Obama administration was the state's ally before the high court, with Acting Principal Deputy Solicitor General Leondra R. Kruger urging the justices to "correct the mistake the 9th Circuit made in this case."

"What we have is a decision that changes the legal landscape for child-protective workers who are doing their best to protect children," Kruger said.

She also said that wiping out the 9th Circuit decision would be acceptable, although that would put up a roadblock to the development of clear legal rules that could guide investigators.

Carolyn A. Kubitschek, the lawyer representing S.G. and her mother, said several times today that overly zealous child-abuse investigations could be harmful to children.

The state's position is that "there are no limits, no constraints" on what investigators could do in interviewing a child in school, Kubitschek said.

In the case from Bend, Ore., 9-year-old S.G. was pulled from her classroom one day in 2003 and taken to a school office, where she was interviewed by a state child-protective-services caseworker and a deputy sheriff.

The authorities suspected the girl was being sexually abused at home. After lengthy questioning, the girl told the investigators that she had been touched inappropriately by her father. The girl and her sister were briefly removed from their home, but criminal charges against their father were later dismissed. The father did accept a plea agreement over abuse charges involving another child.

S.G.'s mother sued not only the investigators who questioned her daughter, but also the Bend-La Pine school district and the school counselor who had removed the girl from class. The mother says in court papers that only after two hours of denying any abuse did S.G. tell the investigators what the girl believed they wanted to hear—that her father had touched her improperly. The school district was dismissed as a defendant in earlier proceedings.

The justices today eventually did get around to exploring the merits of in-school interviews of potential child-abuse victims.

Justice Antonin Scalia wondered, only half-seriously, whether faced with hurdles over removing schoolchildren to a private room to be interviewed, they would be forced to sidle up alongside them in school hallways to inquire about abuse.

Justice Stephen G. Breyer asked whether it constituted a "seizure" under the Fourth Amendment when students were confined to class by school officials for misbehavior.

Kubitschek said most interactions between school personnel and students (as opposed to state investigators) would be governed by cases that give school authorities wide disciplinary latitude.

There seemed to be little sympathy on the court for the idea that the 9th Circuit was right on the merits and that such child-abuse interviews would require a search warrant or parental permission.

"It's hard to swallow that if a child is asked [in circumstances similar to this case] and says she is being abused, that it is unreasonable" for state investigators to take the next steps in an investigation, Justice Sonia Sotomayor said.

A decision in the case is expected by June. On March 23, the court will take up another case involving the police and schools. In J.D.B. v. North Carolina (No. 09-11121), the justices will consider whether a student interviewed at school about suspected neighborhood thefts should have been given a Miranda warning.

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