May 2011 Archives

The U.S. Supreme Court on Thursday sidestepped an important test of whether in-school interviews of students by the police and other authorities require a warrant, ruling that the case—involving the questioning of an Oregon girl by authorities who believed she was a victim of sexual abuse at home—was moot.

However, without deciding the merits of the issue, the court set aside part of a federal appeals court ruling that the Fourth Amendment required investigators to have a warrant or parental consent before interviewing students in school.

Justice Elena Kagan, writing for the majority in Camreta v. Greene (Case No. 09-1454), said that because the young woman at the center of the case no longer lived in Oregon and would soon graduate from high school, she no longer faced the prospect of a warrantless police interview in school.

"When subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur, we have no live controversy to review," Justice Kagan said in an opinion joined by four of her colleagues. The overall judgment was 7-2.

The case was prompted by the ordeal of a girl identified in court papers as S.G. In 2003, 9-year-old S.G. was pulled from her Bend, Ore., classroom, taken to a school office, and 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 the father were later dismissed. The father accepted 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 school defendants were dismissed early in the case. The mother said 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 suit led to a 2009 decision by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that S.G.'s Fourth Amendment rights were violated because she had been seized in the absence of a warrant, parental consent, or other special circumstances.

This led to a procedurally messy appeal to the Supreme Court by the investigators, a state child-abuse caseworker and a deputy sheriffs, who were granted qualified immunity from liability in this case but said they would be hampered by the rule requiring a warrant or parental consent in future school interviews of suspected abuse victims.

In her May 26 opinion, Justice Kagan said the high court could review a lower court's ruling on a constitutional issue even when the appeal was brought by officials who were deemed to have qualified immunity in the case. That issue alone is important in the field of public education, in which many suits challenging school policies and actions are resolved on immunity grounds but often also involve a ruling on the merits of a constitutional issue.

Justice Kagan said the court was bending its usual rule that bars prevailing parties, such as the officials who won immunity in this case, from appealing to the high court. She said qualified-immunity rulings in cases in which lower courts also rule on constitutional issues "have a significant future effect on the conduct of public officials—both the prevailing parties and their co-workers—and the policies of the government units to which they belong."

Kagan said that after granting review of the case, the court learned that S.G. had moved to Florida. The teenager is now approaching her 18th birthday and presumably about to graduate from high school, Kagan said.

"S.G. therefore cannot be affected by the Court of Appeals' ruling," Kagan said. "She faces not the slightest possibility of being seized in a school in the 9th Circuit's jurisdiction as part of a child abuse investigation."

Kagan said the mootness of S.G.'s underlying case in turn has frustrated the appeal rights of the investigators to challenge the 9th Circuit's constitutional ruling.

The majority vacated that part of the 9th Circuit ruling, which is significant in that it removes, for now, the requirement that warrants or parental consent are required for in-school interviews.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Ruth Bader Ginsburg, and Samuel A. Alito Jr. joined Justice Kagan's opinion.

Justice Sonia Sotomayor filed an opinion, joined by Justice Stephen G. Breyer, saying she agreed the case was moot, but she would not have reached the issue of whether the officials granted immunity in this case had the right to appeal.

Justice Anthony M. Kennedy, in a dissent joined by Justice Clarence Thomas, said that clarification of the court's principles on qualified immunity and constitutional rulings was in order, but that in this case he would have dismissed the appeal.

"It is most doubtful that Article III [of the Constitution] permits appeals by any officer to whom the reasoning of a judicial decision might be applied in a later suit," Justice Kennedy said. "Yet that appears to be the implication of the court's holding."

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Efforts to use the courts to reform public education have largely been a failure, says a political scientist who has closely studied school litigation.

The track record of judicial intervention in school policies shows that there's "no escaping the hard work of political mobilization, legislative action, and administrative oversight," says Joshua M. Dunn, a political science professor at the University of Colorado-Colorado Springs.

Dunn made the observations in a draft paper and a presentation this week at a forum put on by the American Enterprise Institute for Public Policy Research, in Washington.

Dunn is generally referring to the courts' handling of large-scale institutional reform litigation involving the schools, such as desegregation cases. Not only have judicial interventions rarely improved education, Dunn says, they often make things worse, with good intentions leading to unforeseen results.

Dunn's draft paper is titled, "Courting Education: Mitigating the Seven Somewhat Deadly Sins of Education Litigation." Among the sins, he says, are these:

&mbull; Courts make decisions based on unreliable information, often from expert witnesses.

&mbull;They can only proceed in piecemeal fashion, based on the cases before them.

&mbull; Courts sometimes oversimplify complex problems, resorting to "reductionist solutions" that do little to solve the larger and more complex problems.

&mbull; School reform litigation costs too much, both in time and money

Among the cases Dunn cites for committing one or more of these sins is the Missouri v. Jenkins desegregation case in Kansas City, Mo.; and the Horne v. Flores litigation in Arizona, over the education of English-language learners. (The links are to the main Supreme Court decisions that were aimed at reining in those suits, while Dunn is generally referring to lower court decisions in those cases.)

Dunn, who wrote a book on the Jenkins case and co-edited a book of essays about school litigation, cites the observation of a then-obscure Democratic state senator and part-time constitutional law professor in Illinois to support his case.

The courts had done a poor job with desegregation, Barack Obama said in 2001. "The court's just not very good at it, and politically it's very hard to legitimize opinions from the court in that regard," Obama said.

Institutional reform litigation is probably not going away, and on the same day that Dunn made his presentation, the U.S. Supreme Court upheld a sweeping lower-court order requiring California to reduce its prison population because of unconstitutional conditions. The decision prompted Justice Antonin Scalia, in dissent, to make this observation about the sorts of judicial orders that emerge from institutional reform litigation.

"[S]tructural injunctions do not simply invite judges to indulge policy preferences. They invite judges to indulge incompetent policy preferences," Justice Scalia said in his May 23 dissent in Brown v. Plata. "Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatseover into the management of social institutions."

Dunn says there are a few areas involving schools in which the courts have been effective, such as special education cases and lawsuits helping to guarantee the religious-speech rights of students.

Courts, Dunn concludes, can be most effective not when micromanaging complex education problems but acting as an enforcer of clearly defined rights hashed out in the political process. "Policymakers should look to the political process to create policies for the courts to enforce," he said.

* * * *

Dunn's paper was delivered at an excellent AEI forum called "Carrots, Sticks, and the Bully Pulpit: Sobering Lessons from a Half Century of Federal Efforts to Improve America's Schools."

Many of the papers and speakers dealt with topics such as the growing federal role in K-12 education policy, the Elementary and Secondary Education Act, federal education research, and federal efforts to aid urban school systems. Most were beyond the scope of the School Law Blog, but I encourage readers to check out the draft papers and, if you have the time, the video of the daylong forum, at this link.

Posted by Mark Walsh at 4:15 PM | Permalink | Leave a comment | Recommend

The nomination of Goodwin H. Liu, a law professor with strong education-policy ties, to be a federal appeals court judge was blocked in the U.S. Senate on Thursday when Democrats failed to come up with the votes to end a Republican filibuster.

The Senate voted 52-43 in favor of a cloture motion, short of the 60 votes needed to end debate over the nomination of Liu, a professor at the University of California-Berkeley law school.

Liu, 40, was first nominated in the last Congress by President Barack Obama to a vacancy on the U.S. Court of Appeals for the 9th Circuit, in San Francisco. He was renominated this year when the first try languished. He would have been the first Asian-American judge on the 9th Circuit.

Liu served as a policy aide in the U.S. Department of Education under President Bill Clinton, and he has written widely about education law and policy. A bipartisan group of education policy experts endorsed Liu's nomination in a letter to the Senate Judiciary Committee last year. The letter was signed by former Secretary of Education Richard W. Riley, who served under Clinton, as well as Republican policy experts such as Christopher T. Cross and Michael J. Petrilli.

On the Senate floor Thursday, Sen. Barbara Boxer (D-Calif.) cited Liu's education law experience and an award from the Education Law Association, among his other accomplishments, in urging her colleagues to give the nominee an up-or-down vote.

"He is considered in this nation one of the leading constitutional law and education law experts—but not in this chamber," Boxer said.

Liu faced opposition from Republicans in large part over his outspoken opposition to President George W. Bush's nominations of John G. Roberts, Jr., and Samuel A. Alito, Jr., to the U.S. Supreme Court.

But Republicans also repeatedly said they were concerned about a 2008 Stanford Law Review article in which Liu suggested a re-examination of "welfare rights," which Liu construed as including education, shelter, and health care, as federal constitutional rights.

Citing the Stanford article, Senate Minority Leader Mitch McConnell of Kentucky said on the Senate floor Thursday: "Mr. Liu appears to view the judge not as someone whose primary job is to interpret the Constitution but as someone whose lifetime tenure liberates him to advance his views of what the Constitution means and empowers him to impose it on others. In his view, it is the job of a judge to create new rights, regardless of what the Constitution says or what the American people, acting through the democratic process, want."

Sen. Jeff Sessions of Alabama, the ranking Republican on the Judiciary Committee, said: "Professor Liu believes judges have the right and, indeed, the duty, to rewrite laws written by Congress when they think those laws are inadequate or when the judge, without the traditional limits of legal standards, decides the case on what the judge thinks is fair."

The Republican opposition was too much for Liu to overcome, and he became the first of President Obama's judicial nominees to be defeated.

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A New York State school district was on solid legal ground when it barred a high school student newspaper from publishing a sexually explicit cartoon, a federal appeals court has ruled.

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, unanimously upheld the censorship of the cartoon depicting stick figures in various sexual positions.

Students involved with The Tattler, the student paper at Ithaca High School, sued the Ithaca, N.Y., school district alleging violations of First Amendment free speech rights, among other claims.

The incident stems from 2005, when the faculty adviser of The Tattler, a school-sponsored student newspaper, pulled the stick-figure cartoon and an accompanying article by a recent Ithaca High alumnus headlined, "Alumni Advice: Sex is Fun!" (The How Appealing web site has linked to this site containing documents from the case, with the cartoon on Page 18 of the PDF.)

Students appealed to the administration, but the administration backed the adviser. The district's superintendent said the stick figures "appeal to the prurient interest in sex," and that the cartoon would raise inappropriate questions in the minds of many students and interfere with the health curriculum's lessons on sexual abstinence and responsibility.

After the newspaper adviser resigned (for reasons that aren't clear), The Tattler did not publish for several months. Students sought permission to distribute an independent publication that included the stick-figure cartoon, but administrators turned them down. The students sued over that as well.

A federal district court upheld the school district's actions, and in its May 18 decision in R.O. v. Ithaca City School District , the 2nd Circuit panel affirmed.

"We hold that defendants complied with the standards for regulation of speech in public schools set forth in Bethel School District Number 403 v. Fraser, which permits schools wide discretion to prohibit speech that is 'lewd, indecent, or offensive,' and Hazelwood School District v. Kuhlmeier, which permits schools to censor school-sponsored speech in ways 'reasonably related to legitimate pedagogical concerns,'" Judge Jose A. Cabranes wrote for the court.

The stick-figure cartoon is "unquestionably lewd" and thus fell under Fraser, the judge said. And "the record clearly demonstrates that the paper was school-sponsored, or at least that its publication constituted an expressive activity that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school, which is sufficient to trigger the application of Hazelwood."

As for the school district's restriction on distributing the independent newspaper containing the cartoon, the court said it need not decide whether the publication would have been disruptive under U.S. Supreme Court's landmark student speech case, Tinker v. Des Moines Independent Community School District, because the censorship of lewd speech was lawful under Fraser.

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Georgia's highest court on Monday struck down a state law that created a commission with the authority to approve charter schools over the objections of local school districts.

The 4-3 ruling by the Georgia Supreme Court does not affect some 65,000 students attending charter schools approved by local districts, but it created uncertainty for the 5,000 students in 16 such schools approved by the Georgia Charter Schools Commission.

The majority on the state high court said the 2008 law creating the commission conflicted with a provision of the state constitution that grants local boards of education exclusive control over general K-12 education. A constitutional provision allowing the state to operate "special schools," such as vocational schools, schools for exceptional children, and adult education schools, does not authorize the state to control charter schools, the court said.

"Labeling a commission charter school as 'special' does not make it so when the students who attend locally-controlled schools are no less special than those enrolled in commission charter schools and the subjects taught at commission charter schools are no more special than the subjects that may be available at locally-controlled schools," Chief Justice Carol W. Hunstein said in Gwinnett County School District v. Cox.

In a lengthy dissent, Justice David E. Nahmias said that under a "true historical context," commission charter schools are merely the latest version of "special schools" created by the legislature outside of the context of common schools run by local school boards.

"Today four judges have wiped away a small but important effort to improve public education in Georgia—an effort that reflects not only the education policy of this state's elected representatives but also the national education policy of the Obama administration," Nahmias said.

He noted that the Race to the Top program, begun under President Barack Obama, rewarded states that had laws allowing high-quality charter schools to be authorized by more than one entity, and that Georgia had amended its Race to the Top application to highlight the role of the state charter schools commission before winning $400 million in federal aid under the program.

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It has been nearly a half century since the U.S. Supreme Court issued its landmark decisions striking down state-sponsored prayers in the public schools. On Tuesday evening at the court, a scholarly lecture about one of those decisions kicked off what is likely to be a good deal of nostalgia and renewed debate about the cases.

In 1962, in Engel v. Vitale, the court invalidated a New York law requiring daily recitations of a prayer composed by the state Board of Regents. In 1963, in Abington School District v. Schempp, the court struck down practices that were much more prevalent in other states: school-led recitations of Bible verses and the Lord's Prayer. For years, critics have accused the high court of nothing less than causing the decline of American public education.

Douglas Laycock, a professor of law and religious studies at the University of Virginia, focused on the Schempp case, for which the Supreme Court is widely viewed as more directly and forcefully confronting the long U.S. tradition of school-led prayers than it had the year before in Engel.

"Ending school-sponsored religious exercises was an idea whose time had come," said Laycock, who was delivering the last in a Supreme Court Historical Society series this spring about the people behind the court's religion cases. Laycock, a preeminent scholar on church-state issues, was introduced at the May 10 event in the courtroom by Justice Anthony M. Kennedy. (I wrote here about another lecture in the series, on the 1972 case of Wisconsin v. Yoder.)

While there were several lawsuits in the late 1950's and early 1960's challenging public school religious exercises around the country, the story of the Schempp family of Abington, Pa., is the most compelling, Laycock said.

Edward Schempp and his wife, Sidney, were Unitarians who encouraged their children to think for themselves. The Schempps did not believe in the Holy Trinity or in an anthropomorphic God as conveyed in the King James Bible, the version used by many Protestant denominations and used in the public schools since the 19th Century, when educator Horace Mann of Massachusetts introduced the idea of reading Bible verses without comment to children in the "common schools."

Edward Schempp objected to the daily Bible verses and Lord's Prayer delivered by students in the Abington schools. He didn't think many verses of the Bible were appropriate for reading to schoolchildren without further instruction or context. "But he wasn't sufficiently motivated to do anything about it," said Laycock.

Enter the Schempps' oldest son, Ellery, who in November 1956 started a personal protest against the religious exercises, one he had given much thoughtful consideration. Ellery, a junior at Abington High School at the time, "put a borrowed Koran on his desk, opened it to a random page, and kept it open while the morning prayers were delivered," Laycock said.

Ellery faced consequences at school, but he was eventually allowed to leave his homeroom class during the daily devotionals. But he personally contacted the local chapter of the American Civil Liberties Union to see whether it would be interested in challenging the 1913 Pennsylvania law mandating the daily religious exercises.

"Abington v. Schempp was not a test case stirred up by lawyers looking for a client," Laycock noted.

After internal debate and vetting of the Schempp family for the difficulties they would likely face as plaintiffs, the ACLU sued the school district based on the First Amendment's establishment and free-exercise of religion clauses.

Because the suit challenged the constitutionality of a state statute, prevailing federal law at the time called for a special three-judge federal district court to consider it, with a direct appeal to the U.S. Supreme Court the next stop. The three-judge court sided with the Schempps in 1959. The case likely would have been the first school prayer case to be decided by the Supreme Court, but Pennsylvania amended its law to allow students to opt out of the religious exercises, which resulted in a fresh round of arguments in the three-judge court before those judges again struck down the law in 1962.

In the meantime, the challenge to New York's law had reached the high court, and in the spring of 1962, the court voted 6-1 to strike it down as a violation of the establishment clause.

The Abington school district's appeal of the Schempp case, as well as a challenge to religious exercises in the Baltimore schools by the atheist Madelyn Murray, reached the court that spring, and the justices agreed to take them up as well.

On June 17, 1963, the court voted 8-1 that daily Bible readings and the Lord's Prayer in the public schools violated the establishment clause. (Justice Potter Stewart was the lone dissenter in both Engel and Schempp.)

Laycock noted that it would have been customary for the Supreme Court to release its 1963 decision under the caption of the Baltimore case, Murray v. Curlett, since that appeal had reached the court ahead of the Schempp case. But Justice Tom Clark, who wrote the main opinion, probably found several good reasons to chose to put the Schempp case first.

For one thing, the Schempp case had had a full trial and a better-developed record than the Baltimore case, and Clark's opinion focused more on the facts of the Pennsylvania case. But considering that the court's 1962 Engel decision had already come in for monumental public criticism, there were other considerations.

"The Schempps were an intact nuclear family that went to church every week," Laycock said. Madelyn Murray (later O'Hair) was an outspoken atheist, an unwed mother, had a foul mouth, and had applied for Soviet citizenship, he said.

"Probably the court knew only some of this, but it knew enough," he said.

Laycock said that many of the personal case details in his lecture came from the book Ellery's Protest: How One Young Man Defied Tradition and Sparked the Battle over School Prayer, by Stephen D. Solomon (University of Michigan Press, 2007). I can also heartily recommend Solomon's book.

Solomon, an associate professor at New York University who interviewed Schempp family members and others involved in the case, notes in the book that while the school prayer decisions were met with protests and widespread non-compliance, at least the Abington school district promptly obeyed the court's mandate.

Over the next five decades, controversies over religious expression in public schools would abound. The Supreme Court would strike down clergy-led prayers at graduation ceremonies (Lee v. Weisman), student-led prayers over the intercom at high school football games (Santa Fe Independent School District v. Doe), but uphold requiring equal treatment of student Bible clubs in secondary schools (Westside Community Board of Education v. Mergens).

Other cases have never been decided by the justices but continue to percolate: Bible distribution in schools, prayers by valedictorians or other student speakers at graduation, religious themes in student classwork, and school-led recitations of the Pledge of Allegiance, with the words "under God."

Laycock noted that because he had graduated from Abington High School during the course of the litigation over school prayer, Ellery Schempp was substituted as a plaintiff in the suit by his younger siblings. Despite efforts by an administrator at the high school to discredit him in his college recommendations, Ellery was accepted at Tufts University, where he became active in civil rights and a supporter of John F. Kennedy's presidential campaign. He earned a doctorate in physics from Brown University, and, among other things in his career, helped develop medical imaging technology for General Electric. Now in his 70s, he is retired and lives in the Boston area.

In 2002, Ellery Schempp was inducted into Abington High School's hall of fame for his achievements in science. But among Schempp's other accomplishments, the school noted the following: "Initiated school prayer suit against Abington which was eventually decided by the U.S. Supreme Court in 1963."

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The Obama administration is reminding school administrators nationwide of their obligation under federal law to enroll children regardless of citizenship or immigration status.

"Recently, we have become aware of student enrollment practices that may chill or discourage the participation, or lead to the exclusion, of students based on their or their parents' or guardians' actual or perceived citizenship or immigration status," says the "dear colleague" letter released on May 6.

The letter cites Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin, among other factors, by public schools. It also cites Plyler v. Doe, the 1982 decision by the U.S. Supreme Court that held a state may not deny access to a basic public education to any child, whether that child is present in the country legally or not.

The letter is signed by Russlynn Ali, the assistant secretary for civil rights in the U.S. Department of Education; Charles P. Rose, the Education Department's general counsel; and Thomas E. Perez, the assistant attorney general for civil rights in the U.S. Department of Justice.

The letter and accompanying materials suggest that some elementary and secondary schools are discouraging the enrollment of undocumented immigrant children by asking about their immigration status, denying enrollment to those with foreign birth certificates, or denying enrollment to children whose parents decline to provide their Social Security numbers or race and ethnicity information.

The Education and Justice departments stress in a fact sheet and a question-and-answer document that schools may require proof that a child lives within school district boundaries. This may include lease agreements, utility bills, or other documents, but schools may not ask parents about a child's immigration status to establish residency.

Schools may also ask for birth certificates to establish that a child falls within minimum and maximum age requirements, but they may not bar enrollment because a child has a foreign birth certificate, the guidance says.

Schools may ask for children's Social Security numbers to be used as student identifiers. But they should inform parents of the purpose and that disclosure of such numbers is voluntary. Schools may not deny enrollment if parents refuse to provide a child's Social Security number, the documents say.

The "dear colleague" letter says that schools "may wish to review the documents your district requires for school enrollment to ensure that the requested documents do not have a chilling effect on a student's enrollment in school."

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A federal appeals court has returned to a lower court a race- and gender-conscious settlement plan covering testing, recruiting, and seniority of custodians in the New York City school system.

The court said the plan, which stems from a discrimination lawsuit brought in 1996 by President Bill Clinton's administration, must be analyzed by a federal district judge under a 2009 U.S. Supreme Court decision that backed a reverse-discrimination suit by white and Hispanic firefighters in New Haven, Conn.

"The city defendants' race- and gender-conscious actions are a poor fit for the wrongs they seek to redress," said the opinion for a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, in United States v. New York City Board of Education.

The 139-page opinion addressed numerous complex issues raised by the 16-year-old lawsuit, which claimed that the city school system used tests that discriminated against blacks and Hispanics and recruiting practices that were biased against blacks, Hispanics, Asians, and women for custodian and custodian engineer positions.

Court papers say that in the years before the suit was filed, 99 percent of such jobs were filled by men, and 92 percent were held by whites. The government alleged that the school system's practices had a disparate impact on women and minorities in violation of Title VII of the Civil Rights Act of 1964.

The parties reached a settlement of the suit in 1999, but it was later rejected by the 2nd Circuit court. Meanwhile, the school system implemented some aspects of the settlement, providing retroactive seniority to certain minority workers. This prompted a challenge from the incumbent custodians, whose seniority rights were covered by a collective-bargaining agreement.

In its May 5 decision, the 2nd Circuit panel reviewed several rulings by the district judge in the case. The rulings upheld race- and gender-based remedies for some groups of minority and female custodians and applicants.

The 2nd Circuit said those rulings must be reconsidered in light of the Supreme Court's 2009 decision in Ricci v. DeStefano. In that case, involving promotional tests in the New Haven Fire Department, the high court held that before an employer may engage in intentional discrimination to remedy an unintentional disparate impact (for race or gender, for example), it must have a "strong basis in evidence" to believe it will be subject to disparate-impact liability if it doesn't take the race- or gender-based action. (I blogged here about the decision and its relevance for schools.)

The 2nd Circuit said the district judge mistakenly applied legal tests for employer affirmative-action plans, when the custodian settlement is not really such a plan but a form of "make-whole" relief for specific individuals injured by the school system's policies.

The panel said the district court faced a tall task.

"It will, of course, be impossible for the district court to fashion a remedy that makes everyone happy, much less whole," the court said. "To the extent that the city defendants' employment practices were discriminatory, there were too many victims to count."

But some of the white custodians were victims of reverse discrimination, too, the appeals court said.

Judge Reena Raggi concurred in the outcome but said she felt the majority's "extended discussion" of the issues was not necessary for the remand and could "confuse future judgments actually based on Ricci."

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A federal appeals court has upheld the dismissal of a Wisconsin high school teacher for accessing pornographic images on his school computer, rejecting his claims that his school district retaliated against him for teachers' union activism.

Robert Zellner was a longtime biology teacher at Cedarburg High School in Cedarburg, Wis., when he was dismissed in 2006. He had been active in the Cedarburg Education Association, an affiliate of the National Education Association, serving as its president from 2003-05.

Around that time, the union local was engaged in bitter relations with Superintendent Daryl Herrick over the district's relatively low teacher pay scale and management issues.

After one contentious bargaining session, court papers say, the superintendent warned Zellner privately that "the gloves would come off" if the union did not back down and that someone in the community had informed him that Zellner was "into pornography."

Contentious relations continued, including after Zellner left the union presidency but was still its representative at Cedarburg High. The school board, meanwhile, renewed the superintendent's contract despite a no-confidence vote from the teachers' union.

In late 2005, after Zellner criticized the superintendent in a Milwaukee newspaper, the teacher was confronted with evidence that he had accessed porn on his school computer. A school technology staff member had installed tracking software on the computer and alerted supervisors when Zellner did a search for "blonde" on Google Image Search.

Zellner acknowledged he had accessed the porn images. The matter was referred to the school board because the teacher violated the district's computer usage policy. Zellner read a statement apologizing and saying he used poor judgment, but the school board voted to terminate him.

An arbitration award won by Zellner (which called for his reinstatement) was overturned by Wisconsin state courts. So Zellner sued the district in federal court, claiming his firing over the porn images was pretextual and retaliation for his union activities.

Zellner lost in both a federal district court and before a panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago.

"While it is abundantly clear that the relationship between the union and the district was contentious, combative, and miserable, and that Zellner and the district played a central role in the relationship, Zellner ignores the discovery of his November 6 Google Image search," the 7th Circuit court said in a unanimous April 29 decision in Zellner v. Herrick.

"It is undisputed that the search violated the district's [computer-usage] policy, that Zellner admitted that he performed the search, and that he knew he violated the policy," the court continued. "Accordingly, the School Board had a legitimate, non-discriminatory
reason to terminate Zellner's employment. ... Without evidence that some other teacher violated the policy in a similar way and received a milder sanction, Zellner's 'but for' case rests on conjecture."

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The U.S. Supreme Court on Monday refused to hear the appeal of a Texas high school cheerleader who was dismissed from the squad after she refused to cheer for a basketball player accused of sexually assaulting her.

The cheerleader and her parents had sued the Silsbee Independent School District near Beaumont, Texas, on grounds that officials violated her right to equal protection and her free-speech right not to cheer in symbolic protest.

The case drew headlines after the cheerleader, identified in court papers as H.S., alleged that she was sexually assaulted at a 2008 party by the basketball player and two other young men. A state grand jury declined to indict the three defendants, and the basketball player was permitted to return to the Silsbee High team.

When the player went to the free-throw line during a 2009 game, H.S. silently refused to cheer for him along with her fellow cheerleaders. According to court papers filed by the school district, the cheerleader's refusal caused a disruption in the stands, and officials told her she had to participate in the cheers or else go home. H.S. went home, and she was removed from the cheerleading squad the next day. (She later rejoined the squad.)

A federal district court dismissed the family's claims against the school district and school officials, as well as additional claims filed against the local prosecutor. In a unanimous ruling last September, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, affirmed the dismissal.

"In her capacity as a cheerleader, H.S. served as a mouthpiece through which [the school district] could disseminate speech—namely, support for its athletic teams," the 5th Circuit panel said. "Insofar as the First Amendment does not require schools to promote particular student speech, [the district] had no duty to promote H.S.'s message by allowing her to cheer or not cheer, as she saw fit. Moreover, this act constituted substantial interference with the work of the school because, as a cheerleader, H.S. was at the basketball game for the purpose of cheering, a position she undertook voluntarily."

The family's Supreme Court appeal in Doe v. Silsbee Independent School District (Case No. 10-1056) was declined without comment from the justices.

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