April 2011 Archives

In a case with implications for elected school board members as well as other local officials, the U.S. Supreme Court on Wednesday took up a tough Nevada ethics law that has been challenged as impinging on the First Amendment rights of policymakers.

The case involves Michael A. Carrigan, a member of the Sparks, Nev., city council who was censured by the the state's Commission on Ethics for voting to approve a casino that had been lobbied for by an influential political confidante of Carrigan's.

The state's ethics laws for local officials requires them to abstain from voting on matters implicating their own financial interests or those of a household member, relative, an employer, or anyone else with whom they have a substantial and continuing business relationship. But the law also has a "catch-all" provision that requires recusal for any relationship that is "substantially similar" to the listed ones.

Carrigan challenged the catchall provision, and the Nevada Supreme Court ruled that voting by an elected official was core political speech under the First Amendment, triggering strict legal scrutiny of restrictions. The court went on to rule that the state law provision was substantially overbroad in the amount of speech it regulated.

During the April 27 oral arguments in Nevada Commission on Ethics v. Carrigan (Case No. 10-568), some justices questioned the idea that voting by a city council member or other local lawmaker was speech protected by the First Amendment.

"It's a considerable question whether the vote of a legislature is ... speech at all," Scalia said. "It's a vote."

Justice Samuel A. Alito Jr. wondered whether, under Nevada's law, a city council member would have to recuse himself from voting to raise property taxes if his second cousin would be affected.

"If I were a public officer, I would find it very difficult to figure out whether a reasonable person would think that an effect on my second cousin's property taxes would ... materially affect my judgment," Alito told the lawyer defending the state law. "But it's even worse than that because of the 'substantially similar' [provision]. So the public officer not only has to think about second cousins; the person has to think about everybody who is like a second cousin to him or her. I have no idea how you go about that."

Justice Anthony M. Kennedy wondered whether a lawmaker would have to recuse on matters involving someone from his book club, or because "they have coffee together every morning."

"It only covers the very closest personal relationships," said John P. Elwood, the lawyer representing the state ethics commission. "So your most intimate and closest relationships on earth would be covered."

"Neutral laws requiring official recusal for conflict of interest do not abridge free speech because a legislator's vote, however expressive, is not protected speech," Elwood said. "It is, rather, a legally binding exercise of state power that he wields as an incident of public office."

But Joshua E. Rosenkranz, the lawyer for Carrigan, said the ethics commission was acting as the "police of political purity."

"This takes one particular legislator and says, you cannot vote." Rosenkranz said. "And those rules are completely fine in certain circumstances, but not when the effect is to tell someone that the rationale, the reason that you are being isolated is because you associated with someone politically who helped you win an election."

The case was the last oral argument of the court's 2010-11 term, and a decision is expected by late June.

The Nevada ethics commission's rules apply to school boards in the state, as reflected by one case it handled last year involving the president of the Clark County board of education. The commission received an allegation that the school board president failed to recuse herself from deliberations over a superintendent search despite the fact that her husband worked for a company owned in part by a person interested in the job.

The commission's staff concluded that the board member did disclose the relationship at a key point and that the state law did not require her to recuse herself from all aspects of the superintendent search. The case was not part of the one before the U.S. Supreme Court.

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In a case raising novel issues about student speech rights in the Internet era, a federal appeals court has upheld the discipline of a Connecticut student who had harshly criticized school officials in her Web journal.

The closely watched case involves Avery Doninger, who was a junior at Lewis S. Mills High School in Burlington, Conn., in 2007 when she tussled with school officials over the scheduling of a band contest known as "Jamfest."

Doninger, who was a student council member and junior class secretary, went home and wrote in an entry in her public blog at the website livejournal.com that "jamfest is cancelled due to douchebags in central office" and that readers should contact the superintendent "to piss her off more."

School officials, citing disruption by the emails and Doninger's Web comments, barred her from running for senior class secretary. She wasn't suspended.

Doninger and her mother initially sought an injunction barring her discipline, but a district court and a panel of the U.S. Court of Appeals for the 2nd Circuit, in New York, which included then-Circuit Judge Sonia Sotomayor, ruled against her.

The student continued to press her claims for damages under the First Amendment's free-speech clause. She lost in 2009 in federal district court, which granted qualified immunity to the school officials who disciplined her.

In a decision on Monday, a new 2nd Circuit panel ruled unanimously that school officials were immune from Doninger's suit.

"It was objectively reasonable for school officials to conclude that Doninger's behavior was potentially disruptive of student government functions (such as the organization of Jamfest) and that Doninger was not free to engage in such behavior while serving as a class representative—a representative charged with working with these very same school officials to carry out her responsibilities," Judge Debra Ann Livingston said in her April 25 opinion for the panel in Doninger v. Niehoff.

The court said it was "not clearly established at the time of these events that Doninger had any First Amendment right not to be prohibited from running for senior class secretary because of offensive off-campus speech, at least when such speech pertained to a school event, invited students to read and respond to it by contacting school administrators, and it was reasonably foreseeable that the speech would come on to campus and thus come to the attention of school authorities."

The court stressed that it was stopping short of ruling whether the school discipline actually violated Doninger's free speech rights. And, "to be clear, we do not conclude in any way that school administrators are immune from First Amendment scrutiny when they react to student speech by limiting students' participation in extracurricular activities."

But the speech at issue in Doninger's case was closely tied to school events, and the student's role as a council member and class officer was signficant in the qualified-immunity analysis, the court said.

The court noted that the U.S. Supreme Court "has yet to speak on the scope of a school's authority to regulate expression that, like [Doninger's], does not occur on school grounds or at a school-sponsored event."

On a separate issue in the suit, the 2nd Circuit court upheld school officials' immunity over barring Doninger from wearing a T-shirt related to the controversy at a school election assembly. The T-shirts said "Team Avery" on the front, in reference to Doninger, and "Support LSM Freedom of Speech" on the back, referring to the high school. Doninger and her supporters were told they could not wear the shirts into the assembly.

The federal district court had sided with Doninger on the T-shirt issue, holding that her right to wear such a shirt into the assembly was clearly established.

But the 2nd Circuit panel reversed, granting immunity to school officials who barred the T-shirts, even if they were mistaken legally.

The school principal "faced a difficult task in assessing whether the threat of disruption was severe enough to justify preventing Doninger from wearing her T-shirt into the assembly," the 2nd circuit said. A reasonable jury might find that the threat of disruption was not sufficiently substantial, the court added.

"We cannot conclude, however, that such a mistake was anything but reasonable - the very sort of mistake for which the qualified immunity doctrine exists to shield officials against unwarranted liability."

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The U.S. Supreme Court on Monday asked the Obama administration for its views on whether a parent may bring a negligence claim against a school district that allegedly failed to identify a high school student's disabilities.

The justices asked the U.S. solicitor general's office to weigh in on the issue raised under the Individuals with Disabilities Education Act.

The case involves an appeal filed by the Compton, Calif., school district of two lower court rulings that the mother had a valid legal claim under the IDEA that the district had failed to identify her daughter's disabilities.

According to court papers, when the student was in 10th grade, her teachers became concerned that her work was "gibberish and incomprehensible" and that she had failed every class. The school district referred the girl to a mental health counselor, who recommended that the student be evaluated for learning disabilities. The district did not follow the recommendation, and it promoted the girl to the 11th grade.

The mother later made a request for an individualized education program for her daughter, and the district determined that the girl was eligible for special education services for a learning disability.

The mother brought an administrative claim under the IDEA, arguing that the school district failed under the law's "child find" requirement to identify the girl's disabilities sooner. That requirement obliges states to ensure that all children with disabilities who are in need of special education services are identified, located, and evaluated.

An administrative law judge largely sided with the family, ordering as much as 150 hours of compensatory tutoring for the girl's lost educational opportunities. However, the judge refused the family's request for a private school placement at public expense.

The school district appealed that ruling in federal district court, arguing among other things that if the family prevailed, students with disabilities would be able to bring "educational malpractice" claims against districts.

The district court rejected the school district's arguments, and a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, also sided with the family.

In a 2-1 decision in March 2010, the 9th Circuit panel rejected the school district's arguments that the IDEA did not authorize claims where there was no affirmative refusal to act on the part of district officials. The majority held that there was a broad jurisdictional mandate under the federal special education law, and that in this case there was "willful inaction" on the district's part in the face of numerous "red flags" about the student's disabilities.

The dissenter on the 9th Circuit panel said the majority's interpretation would lead to "absurd" results.

"We cannot read the IDEA to require an agency give prior written notice that it will be negligent [and] describing ... the reasons it has decided to be negligent," U.S. Circuit Judge N. Randy Smith said in the dissent. "This majority's interpretation of the school district's duties weakens parents' role by casting the responsibility to monitor and identify children's development solely on to the shoulders of our school system."

The appeal is Compton Unified School District v. Addison (Case No. 10-886). The solicitor general's office typically takes several months to respond to the high court's request for its views in a given case.

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A federal district judge has blocked a Pennsylvania school district from enforcing its ban against breast cancer-awareness bracelets that refer to "boobies," saying the ban is likely unconstitutional under U.S. Supreme Court precedents on student speech.

The rubber bracelets, sponsored by the nonprofit Keep A Breast Foundation of Carlsbad, Calif., feature slogans such as "I ♥ Boobies (Keep a Breast)" and "Check y♥urself (Keep a Breast)." They are meant to facilitate discussion about breast cancer and breast health.

The Easton Area School District banned the bracelets last fall. Officials at Easton Area Middle School believed the reference to "boobies" was vulgar and inappropriate for middle school students, and the bracelets would encourage students to repeat the phrase in other contexts.

Two students who were suspended for defying the prohibition challenged it in court through their parents as a violation of their First Amendment free-speech rights.

U.S. District Judge Mary A. McLaughlin said in her April 12 opinion in H. v. Easton Area School District that the bracelets cannot be considered lewd or vulgar under the Supreme Court's 1986 decision in Bethel School District v. Fraser, which gave schools the authority to punish lewd student speech.

"The bracelets are intended to be and they can reasonably be viewed as speech designed to raise awareness of breast cancer and to reduce stigma associated with openly discussing breast health," the judge said.

The judge said school officials gave differing justifications for the ban, and even used the word "boobies" in an announcement to students about the restriction.

"This supports a conclusion that the school did not actually consider the word 'boobies' to be vulgar," she said.

Also, the school district did not present evidence that the bracelets substantially disrupted school, which would have permitted the restriction under the high court's 1969 decision in Tinker v. Des Moines Independent Community School District.

"At the time of the ban, the school had at most a general fear of disruption," the judge said.

This Associated Press story discusses the case as well as challenges to bans on such bracelets in other school districts across the country.

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The U.S. Department of Education has proposed new regulations on the privacy of educational records, meant to safeguard student data but also to guarantee that states may share data to help judge the effectiveness of school improvement efforts.

The proposed regulations under the Family Educational Rights and Privacy Act of 1974 were published April 8 in the Federal Register. (PDF version here.)

Education Week's Sarah D. Sparks discusses the details of the proposed rules and the sharing of student data in a post this week on her blog, Inside School Research.

Sarah also discusses some of the other steps the Education Department is taking, such as the establishment of a chief privacy officer. The department's release is here.

I wanted to highlight a couple of other provisions in the proposed FERPA regulations.

Under the proposed rules, the department would define "education program" for the first time as any program principally engaged in the provision of education. The proposed rules point out that some early childhood, special education, and adult education programs are run not by state or local educational authorities, but by other agencies, such as state human resources departments, which often oversee Head Start programs.

Another provision involves student identification badges. The proposed rules say parents could not use their right to opt out of making public their child's directory information to excuse the child from having to wear a school ID badge.

"The secretary [of education] believes ... that the need for schools and college campuses to implement measures to ensure the safety and security of students is of the utmost importance and that FERPA should not be used as an impediment to achieving student safety," the proposal states.

Comments on the proposed regulations are due by May 23.

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A federal appeals court has upheld a police search of a visiting high school soccer team accused by an unruly crowd of stealing iPods and cellphones from the host school's locker room.

A panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, ruled 2-1 that officers who conducted the search were entitled to qualified immunity because they believed the visiting team's coach was acting in loco parentis—in the place of parents—and consented to the search on his players' behalf.

But the dissenting judge said the players from Central Falls High School in Rhode Island "were subjected to shockingly disgraceful and humiliating conduct by the police and their fellow citizens" during their Sept. 28, 2006, visit to Coventry, R.I.

Court papers contend that some members of the visiting Central Falls team used the restrooms in the home Coventry High School locker rooms, which included facilities for Coventry's football team. After the soccer match, a group of Coventry High football players accused the Central Falls athletes of stealing iPods and cell phones from the locker room.

A crowd surrounded the Central Falls team bus, shouting racial and ethnic slurs and demanding that the players be searched, court papers say. The Central Falls team was predominantly Hispanic; Coventry High is mostly white.

Central Falls coach Robert Marchand told the Coventry crowd that he would conduct a search of his players' belongings, which he did on the team's bus. Marchand did not believe his players had stolen anything, and he did not find any of the items.

The crowd wasn't satisfied by the coach's search, and, with the crowd still surrounding the bus, four Coventry police cars arrived and boxed the bus in. After a discussion, the police officers asked Marchand whether they could search his players, and he consented. The police searched each player's bag, and patted down some players, all in close proximity to the angry crowd. Again, none of the purportedly stolen iPods or cellphones turned up.

The police then escorted the Central Falls team bus through the crowd and out of town.

Marchand and his players sued the Town of Coventry and the police officers, alleging violations of their Fourth Amendment right to be free of unreasonable searches, among other claims. Their suit contended that a reasonable officer would not have believed that Marchand had supervisory authority over his players and thus could consent to the search. And they claimed a reasonable officer should have realized that the coach's consent was coerced under the situation and thus not valid.

A federal district court granted summary judgment to the defendants, and in its April 1 ruling in Lopera v. Town of Coventry, the 1st Circuit panel affirmed.

The majority said it was clear that Marchand was acting in loco parentis for his team members. While Supreme Court cases have created uncertainty about school authorities' parental authority over students in school, an out-of-town trip supervised by a coach was a much clearer in loco parentis case, the panel said.

The majority also held that Marchand was not coerced into consenting to the search and that no reasonable officer would have thought so. The court noted that the police did not command Marchand to consent.

"The players' evidence depicts a difficult situation in which Coach Marchand faced a genuine choice between imperfect solutions," says the majority opinion by Chief Judge Sandra L. Lynch. "Coach Marchand may have felt that the best way for him to get his players home safely and promptly was to submit to a search."

Judge O. Rogeriee Thompson, the dissenter, said Marchand was coerced into consent.

"The officers' request of Coach Marchand while he was surrounded by an angry mob and unable to depart with his players left little room for choice," Judge Thompson said. "He was subjected to coercion which, though subtler than a peremptory command and more courteous than the irate mob, could hardly be plainer. This coercion vitiated any consent he could give, rendering the subsequent search unlawful."

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A divided U.S. Supreme Court on Monday ruled that taxpayers who opposed an Arizona tax credit that benefits religious schools lacked legal standing to challenge it because any financial benefit to religion under the program is not the result of government spending choices.

"When the government collects and spends taxpayer money, governmental choices are responsible for the transfer of wealth," Justice Anthony M. Kennedy wrote for the 5-4 majority in Arizona Christian School Tuition Organization v. Winn (Case No. 09-987). "Here, by contrast, contributions result from the decisions of private taxpayers regarding their own funds."

The court ruled in a challenge to Arizona's 13-year-old tuition-aid plan, under which taxpayers can receive a dollar-for-dollar credit of up to $500 (or $1,000 for married couples) on their state income-tax returns for donations to "school tuition organizations," or STOs.

Such tuition groups may limit their grants to students who will use them at religious schools. In 2008, scholarship awards under the plan totalled some $54 million, according to the state. The Arizona Republic newspaper reported that 93 percent of the aid that year went to students in religious schools.

Taxpayers generally may not challenge government spending decisions based on taxpayer status alone, though a 1968 Supreme Court ruling, Flast v. Cohen, created an exception that allows taxpayers to challenge a program of direct grants to religious organizations.

Justice Kennedy said the challengers did not meet the requirements for taxpayer standing under Flast.

"The STO tax credit is not tantamount to a religious tax or to a tithe and does not visit the injury identified in Flast," Kennedy said. "It follows that [the challengers] have neither alleged an injury for standing purposes under general rules nor met the Flast exception."

Justice Kennedy's opinion was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr.

While the majority's decision does not decide the constitutional merits of the tuition tax credits, the ruling effectively shields the plan from any further legal challenge.

Justice Elena Kagan, in a sharp dissent joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor, said the majority opinion "devastates taxpayer standing in establishment clause cases" and offers a "roadmap ... to any government that wishes to insulate its financing of religious activity from legal challenge."

"And by ravaging Flast in this way, today's decision damages one of this nation's defining constitutional commitments," Justice Kagan added, "to limit ... the government's power to subsidize religious activity."

UPDATE: My fuller story for Education Week is now available here.

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