June 2011 Archives

The U.S. Supreme Court has agreed to take up a case dealing with public-employee unions' special assessments for political spending. And the justices will once again attempt to sort out the constitutional issues surrounding broadcasting rules meant to protect children from indecency.

The two cases were among 11 added Monday to the high court's docket for the next term. The announcements came amid a flurry of opinions and other activity on the last formal day of the current term, which included a decision striking down a California law that barred the sale of violent video games to minors.

In the union case, Knox v. Service Employees International Union, Local 1000 (Case No. 10-1121), the court will take up the intricate area of law surrounding the agency fees, or service fees, that public-employee unions charge non-union members for collective-bargaining benefits and other permissible costs. Several of the Supreme Court's key precedents in this area involved teachers' unions, though the new case involves a unit of the SEIU that represents California state government employees.

The high court agreed to review a December 2010 decision by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that upheld a 2005 special assessment charged to union members and non-members alike for certain political activities, including to fight two anti-union state ballot measures. The appeal was brought on behalf of objecting non-union members by the National Right to Work Legal Defense Foundation, based in Springfield, Va.

The Supreme Court has sided with right-to-work forces in several recent cases, and the new case could be highly relevant as teachers' unions and other public-employee unions gear up to respond to state legislative measures aimed at curbing their collective-bargaining rights.

In the broadcast-indecency case, Federal Communications Commission v. Fox Television Stations (No. 10-1293), the court will take up a case that began with celebrities such as Bono and Nicole Richie uttering expletives on the air during live awards shows in 2003 and 2004.

In 2009, the high court upheld FCC orders fining broadcasters for the fleeting expletives on administrative grounds, but it remanded the case to a federal appeals court to address constitutional issues. The court found that the FCC "could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children."

On remand, the U.S. Court of Appeals for the 2nd Circuit, in New York City, held that the FCC's entire indecency policy was unconstitutionally vague because it left broadcasters to guess whether an expletive could permissibly be aired in circumstances such as a news interview or when such words were essential to the nature of an artistic or educational work.

The justices agreed to hear the FCC's appeal of that decision, though the court framed the question as whether the agency's "current indecency-enforcement regime violates the First or Fifth Amendment of the Constitution."

Both cases will be heard in the court's next term, which begins on the first Monday in October.

Posted by Mark Walsh at 12:44 AM | Permalink | Leave a comment | Recommend

UPDATED

The U.S. Supreme Court on Monday struck down a California law that bars the sale of violent video games to minors.

The court ruled 7-2 in Brown v. Entertainment Merchants Association (Case No. 08-1448) that the state's attempt to shield young people from violence in video games violates the First Amendment guarantee of free speech.

Writing for the majority, Justice Antonin Scalia said the high court had never permitted government to restrict violent speech directed to minors. From the bench, he noted that children and teenagers are exposed to violence in literature from a very young age, ranging from Grimm's Fairy Tales to high school reading lists that include Homer's Odyssey and William Golding's Lord of the Flies.

"In truth, the California act is the latest is a long series of failed attempts to censor violent entertainment for minors," Scalia said, citing past efforts to restrict dime novels, movies, comic books, and music lyrics.

"Despite these censorship campaigns, this court has never permitted governmental regulation of minors' access to any forms of entertainment except on obscenity grounds," Scalia said.

His opinion was joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

Justice Samuel A. Alito Jr. wrote an opinion concurring in the outcome, which was joined by Chief Justice John G. Roberts Jr. He said he would have only ruled that the California law did not provide fair notice of what was constitutional, but he would not have gone as far as the majority in foreclosing government regulation of video games.

"There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show," Alito said.

He said there as an "astounding" amount of violence in many games, and that there is "no antisocial theme too base" for the game industry to exploit. Among the games he cited as disturbing was "School Shooter," a game that caused controversy earlier this year with its theme of allowing players to reenact the student killings at Columbine High School and Virginia Tech.

Justices Clarence Thomas and Stephen G. Breyer each dissented.

Justice Thomas cited the history of parental control of children from the early days of the Republic and said, "The freedom of speech, as originally understood, does not include a right to speak to minors without going through the minors' parents or guardians."

Breyer said the California law "imposes no more than a modest restriction on expression."

"This case is ultimately less about censorship than it is about education," Breyer added. "Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children—by their parents, by their teachers, and by the people acting democratically through their governments."

The high court heard arguments in the case in November, but didn't announce an outcome in the case until the last day of its term on June 27.

Under California's law, adopted in 2005 but never enforced, violent games are defined as those that include "killing, maiming, dismembering, or sexually assaulting an image of a human being," if the game lacks "serious literary, artistic, political, or scientific value for minors."

The state has not specified what games meet the definition, which borrows heavily from the high court's obscenity jurisprudence. The law requires distributors to place an "18" label on violent games, and it bars retailers from selling or renting such games to anyone under 18, with civil penalties of up to $1,000 per violation. Parents would not be barred from buying the games for their children.

Acknowledging that the measure would not pass strict scrutiny—the highest level of judicial analysis—for laws that impinge on free speech, California had asked the Supreme Court to place violent video games in the same category as sexually explicit materials, requiring only a rational basis for their regulation as they relate to minors.

The state argued that it was helping parents raise their children free of exposure to violent and offensive speech, and it stressed a number of the Supreme Court's precedents in the area of regulating school speech.

The industry groups for merchants and video-game producers that challenged the law had argued that California's measure was the latest in a long history of overreactions to new media aimed at young people.

The Entertainment Merchants Association and the Entertainment Software Association said comic books, true-crime novels, movies, and rock music were all accused of harming youths, but such fears proved unfounded. The groups also argued that upholding the law would create a slippery slope that could allow regulation of young people's access to other works containing violence.

Michael D. Gallagher, the president and CEO of the Entertainment Software Association, a Washington-based group that represents the video game industry, said the decision was "a historic and complete win for the First Amendment and the creative freedom of artists and storytellers everywhere."

"The court declared forcefully that content-based restrictions on games are unconstitutional, and that parents, not government bureaucrats, have the right to decide what is appropriate for their children," Gallagher added in a statement.

On the other side, Common Sense Media, a San Francisco-based media review group that filed a friend-of-the-court brief in support of the California law, called the decision disappointing.

"If parents decide a violent game is okay for their kid, that's one thing, but millions of kids are not able to judge the impact of ultra-violence on their own," James Steyer, the chief executive of the group, said in a statement. "Today, the multi-billion dollar video game industry is celebrating the fact that their profits have been protected."

Photo: A Bulletstorm video game is displayed at a store in Palo Alto, Calif. (Paul Sakuma/AP)

Posted by Mark Walsh at 10:25 AM | Permalink | Leave a comment | Recommend

Justice Sonia Sotomayor says that when she was in high school, she probably did not even realize that the U.S. Supreme Court existed, much less did she aspire to serve on it.

"I'm not sure I learned that there was a Supreme Court" until college, Sotomayor told a group of 150 young people in Washington at the Children's Congress of the Juvenile Diabetes Research Foundation. The 56-year-old justice used much of her half-hour talk before the 150 children and teenagers at a Washington hotel to describe her experiences and challenges of living with type 1 diabetes.

"You get to do anything you want," she told the young people, who also live with type 1 diabetes. "I now have the job of my dreams. And it's a really cool job."

During a question-and-answer session, Stephen Wallace, of Detroit, told Sotomayor that he was in 10th grade and his goal was to become a Supreme Court justice.

"What were you doing in the 10th grade to prepare to be on the Supreme Court?" Wallace asked the justice.

Sotomayor smiled and said, "Not much."

She explained that despite her lack of awareness about the high court, by that age she did know she wanted to be a lawyer and perhaps a trial judge. Those are two ambitions that the Bronx native achieved before also serving on the U.S. Court of Appeals for the 2nd Circuit, in New York City, and on the high court since 2009.

Sotomayor told the young people she participated in activities that proved to be helpful in her career. She joined her school's debate team and also took part in a public speaking club, what was then widely called forensics.

"I also got involved in student government, though I never wanted to be a politician," she said.

She noted that law schools welcomed students from a variety of backgrounds, instead of requiring a rigid, singular path of preparation.

"If you want to become a Supreme Court justice, do the things you like, and do them well," Sotomayor said.

"Maybe someday I'll be there when you are being sworn in" as a justice, Sotomayor told the young man who asked the question.

Sotomayor discussed being diagnosed with diabetes at age 7, when she found herself constantly thirsty and fainting in church. She once ran from doctors and hid under a car to avoid being pierced by a large needle for a diagnostic blood test, but she was soon sterilizing her own syringes in boiling water.

"I learned it takes forever to get water to boil," she said, noting that she would make her school lunch or set out her school clothes while the water warmed up each morning. She told the young people they now have it somewhat easier with disposable syringes and insulin pumps.

She injects her insulin four to six times a day, she said.

"Before I take the bench, I check my sugars to make sure I'm not going to have a low while I listen to people argue" cases before the high court, Sotomayor said.

Asked whether there was anything about having diabetes that was a positive, Sotomayor said that it taught her discipline, whether with nutrition, her study habits in school, or in learning to salsa dance at age 50.

"I pay attention to my body," Sotomayor said.

Alexander Oppen, from Kenosha, Wis., a 17-year-old participant in the Children's Congress, said he found Sotomayor's talk inspiring.

"She grew up in an era when she did not have all the resources that I have" to deal with diabetes, said Oppen, who is involved in drag racing and may become a teacher. "It's really a bad disease, and she takes it with such a great attitude. It's great to see that we can aspire to do anything. We're not going to let this disease stop us from doing what we want to do."

Posted by Mark Walsh at 5:11 PM | Permalink | Leave a comment | Recommend

The U.S. Supreme Court on Monday made it more difficult for public employees to gain First Amendment protections for their workplace grievances.

The court ruled unanimously, in most respects, that a government employer's alleged retaliation against a worker does not create liability under the First Amendment's petition clause unless the employee's petition is about a matter of public concern.

Writing for the court, Justice Anthony M. Kennedy said that the line of cases limiting the workplace speech rights of public employees to matters of public concern applies equally to complaints that are cast as petitions.

"Petitions, no less than speech, can interfere with the efficient and effective operation of government," Justice Kennedy said in Borough of Duryea v. Guarnieri (Case No. 09-1476).

He cited a friend-of-the-court brief filed by the National School Boards Association that expressed concern that every employee grievance, on matters such as working conditions, pay, discipline, promotions, leave, vacations, and terminations, could become a federal case under the broader view of the petition clause that the court was rejecting.

"Unrestrained application of the petition clause in the context of government employment would subject a wide range of government operations to invasive judicial superintendence," Justice Kennedy said.

The high 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.

The Duryea case raised the question of whether the petition clause, which says Congress shall not abridge the right of the people "to petition the government for a redress of grievances," provides a different standard or stronger protection for public-employee workplace grievances.

The case was brought by 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 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 was the Supreme Court's jurisprudence on public-employee free speech. The 1968 case of Pickering v. Board of Education, for example, held that a teacher could not be dismissed for speaking out publicly on a matter of public concern. In 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.

Justice Kennedy said the "public concern" test in government-employee speech cases was developed to protect the government's interest in managing its own workplaces.

"Adoption of a different rule for petition clause claims would provide a ready means for public employees to circumvent the test's protections," he said.

Still, Justice Kennedy stressed that the petition clause had important historical roots and that petitions by government employees that were about matters of public concern deserved protection.

"Public employees are the members of a community most likely to have informed and definite opinions about a wide range of matters related, directly or indirectly, to their employment," Justice Kennedy said.

Justice Clarence Thomas filed an opinion concurring in the judgment that set aside the 3rd Circuit court's ruling, but he expressed doubt that lawsuits are petitions under the "original meaning" of the petition clause.

Justice Antonin Scalia also filed an opinion disagreeing with some of Justice Kennedy's reasoning. He also raised doubts about lawsuits as petitions, and he questioned the idea of applying the "public concern" test to petitions.

"Rather than shoehorning the 'public concern' doctrine into a clause where it does not fit, we should hold that the petition clause protects public employees against retaliation for filing petitions unless those petitions are addressed to the government in its capacity as the petitioners' employer, rather than its capacity as their sovereign," Scalia said.

On that basis, Scalia would have upheld one of the police chief's retaliation claims.

Posted by Mark Walsh at 12:09 PM | Permalink | Leave a comment | Recommend

UPDATED

The U.S. Supreme Court ruled 5-4 on Thursday that a child's age can be a relevant factor when determining whether a juvenile suspect merits a Miranda warning about his rights against self-incrimination.

The court ruled in the case of a North Carolina student who was 13 years old in 2005 when police questioned him at school about a series of neighborhood thefts. They used his statements against him in court, where he was found delinquent.

The question for the high court was whether the police must take age into account in determining whether the juvenile suspect is in custody, and thus entitled to the familiar warnings from the 1966 case of Miranda v. Arizona. The case does not implicate routine school disciplinary matters between students and administrators.

"We hold that so long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test," Justice Sonia Sotomayor wrote for the court in J.D.B. v. North Carolina (Case No. 09-11121).

The opinion was joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, and Elena Kagan,

Justice Samuel A. Alito Jr. wrote a dissent stressing that the court was complicating the Miranda analysis faced by the police. And he suggested that accounting for the "unique circumstances" present when the police interrogate minors at school would address the vulnerability of youth suspects.

"Safeguarding the constitutional rights of minors does not require the extreme makeover of Miranda that today's decision may portend," Alito said.

The dissent was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas.

Neighborhood Thefts

The boy identified as J.D.B. was a middle school student in Chapel Hill, N.C., when the police arrived to question him about a series of thefts in neighborhood homes. The police, who had evidence to suggest J.D.B. had stolen a digital camera and jewelry, went to his school. The boy was pulled from his social studies class and escorted to a conference room, where he was interrogated by the police in presence of the school's assistant principal and an administrative intern. At one point, the assistant principal urged J.D.B. to "do the right thing" because "the truth always comes out in the end."

Only after J.D.B. confessed to the break-ins did the police officer inform him he could refuse to answer questions and that he was free to leave.

The boy was charged in juvenile court with breaking and entering and larceny. A trial court refused to suppress his confession, ruling that J.D.B. was not in police custody during the school interrogation and thus no Miranda warning was required.

The North Carolina Supreme Court also ruled against him, holding that taking the boy's age 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 Miranda and later rulings, the custody inquiry generally turns on whether a reasonable person in the suspect's situation would perceive that he was free to leave the police interrogation.

Police Analysis

Although the circumstances of J.D.B.'s interrogation at school are the foundation for Thursday's decision, the Supreme Court ruling will require the police to take age into account whenever they are dealing with a juvenile suspect.

"A reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go," Justice Sotomayor said in her opinion. "We think it clear that courts can account for that reality without doing any damage to the objective nature of the custody analysis."

She said it was "nonsensical" to think that in many cases involving juvenile suspects that age could not be integral to the custody analysis.

"A student—whose presences at school is compulsory and whose disobedience at school is cause for disciplinary action—is in a far different position than, say, a parent volunteer on school grounds to chaperone an event," Sotomayor said. "With asking whether the person questioned in school is a minor, the coercive effect of the schoolhouse setting is unknowable."

The court reversed J.D.B.'s delinquency finding and sent the case back to the North Carolina state courts so they could determine whether the boy was in custody at the time of the interrogation, this time taking his age into account.

In his dissent, Justice Alito worried that permitting age to be taken into account in the Miranda custody analysis could lead to a slippery slope in which future rulings might require the police to take other factors into account, such as a suspect's intelligence level or educational attainment.

"Why, for example, is age different from intelligence?" Alito said. "Suppose that an officer, upon going to a school to question a student, is told by the principal that the student has an I.Q. of 75 and is in a special-education class. Are those facts more or less important than the student's age in determining whether he or she felt at liberty to terminate the interrogation and leave?"

"I have little doubt that today's decision will soon be cited by defendants ... for the proposition that all manner of other individual characteristics should be treated like age and taken into account in the Miranda custody calculus," Alito said.

Although the opinions don't mention it, it bears emphasis that the Miranda custody analysis does not apply to interactions between school administrators and students. So, the new ruling should not result in students demanded their Miranda rights before being suspended or expelled for violations of school rules. (There was some concern about this during oral argument in the case.)

Megan Miller, a North Carolina lawyer who helped write a friend-of-the-court brief on the state's side for the National District Attorneys Association, said that "without a doubt, this is going to make the job of the police tougher."

"This isn't a bright-line rule that if the [suspect] is under 18, they have to give a Miranda warning," Miller said. "They will have to gauge the specifics of the situation. Sometimes the police will get it right and sometimes they won't."

Marsha Levick, the deputy director and legal counsel of the Juvenile Law Center in Philadelphia, said the decision follows the Supreme Court's pattern of recognizing that minors are more vulnerable to coercion than adults.

"I think Justice Sotomayor was clear in her tone," said Levick, whose center filed a friend-of-the-court brief on the side of J.D.B. "For her, the decision wasn't only steeped in the law, and in the research, but it was steeped in common sense."

While the legal issue is one more for the police and courts that review their actions, Levick said, there are lessons in the decision for school administrators.

"To the extent that administrators are going to cooperate with or invite the police into the school setting, I do think that they need to recognize that students have special rights with regard to custodial settings," she said.

Posted by Mark Walsh at 10:55 AM | Permalink | Leave a comment | Recommend

A few days ago, I reported on the U.S. Supreme Court's refusal to take up a challenge to a New Hampshire law requiring schools to lead daily recitations of the Pledge of Allegiance.

In the deadline rush of a very busy day of education law news (a Supreme Court ruling of the First Amendment rights of public officials, the Pledge denial, and a pair of rulings by a federal appeals court on student Internet speech rights), I mentioned that I thought a similar challenge to school recitations of the Pledge in a California case was still pending.

Thanks to a couple of astute readers of the School Law Blog, Bob Egelko, of the San Francisco Chronicle, and Eric Rassbach of the Becket Fund for Religious Liberty, I learned that the case in the U.S. Court of Appeals for the 9th Circuit, in San Francisco, had come to a close.

The full 9th Circuit declined last fall to grant rehearing of a 2-1 panel decision in Newdow v. Rio Linda Union School District , which upheld teacher-led Pledge observances.

Michael A. Newdow, the California lawyer and atheist who is the driving force behind challenges to exposing public school students to the words "under God" in the Pledge, told me via e-mail that his client opted not to appeal the 9th Circuit panel decision to the Supreme Court after the full 9th Circuit declined to rehear the case. In part, that was because a child-custody issue arose, which would have raised some of the same procedural hurdles that kept the high court from deciding the merits of a previous Pledge challenge brought by Newdow. He plans to file a new challenge to the practice in the future, he said.

The Supreme Court ruled in 2004 in Elk Grove Unified School District v. Newdow that the atheist father lacked standing to challenge the school district's pledge policy on behalf of his daughter, whose mother had sole custody.

The procedural issue did not stop three of the court's conservatives—Chief Justice William H. Rehnquist, and Justices Sandra Day O'Connor and Clarence Thomas—from issuing opinions stating that they would have upheld Pledge recitations in the schools. (Justice Antonin Scalia, you may recall, had spoken out about the case and agreed to recuse himself once it came before the high court.)

For quite some time, as these other Pledge challenges made their way through the courts, it seemed inevitable that the issue would return to the Supreme Court unencumbered by procedural difficulties.

But the 9th Circuit case has fizzled, and the justices expressed no interest in taking up a decision by the U.S. Court of Appeals for the 1st Circuit, in Boston, that upheld the New Hampshire law. Passed in the wake of the Sept. 11, 2001, terrorist attacks, the law requires schools to set aside time for teachers to lead the Pledge.

Of course, the 1st Circuit noted that under the Supreme Court's 1943 decision in West Virginia State Board of Education v. Barnette, no child is required to recite the Pledge. (Although the lesson of that case has been lost on some teachers and administrators in recent years.)

In his appeal to the Supreme Court in the New Hampshire case, Freedom From Religion Foundation v. United States, Newdow says that the 1950's addition of the words "under God" by a Communist-fearing Congress "divided the American people on the basis of religious belief."

"Since that time, agents of the government (i.e. public school teachers) have done as Congress intended, leading the children throughout the country in reciting the amended (Monotheistic) version of the Pledge."

Those recitations are likely to continue throughout much of the country for the foreseeable future.

Posted by Mark Walsh at 8:12 PM | Permalink | Leave a comment | Recommend

In a major pair of decisions on the free speech rights of students in the Internet era, a federal appeals court ruled on Monday that students who ridiculed their principals online could not be punished by school authorities because the speech was created off campus and did not substantially disrupt schools.

The decisions by the full U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, came in two closely watched cases involving parodies of school principals created on the MySpace social-networking site.

The full 3rd Circuit court paid close attention to the facts of each case, ruling unanimously for one student and 8-6 for the student in the other.

"It would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child's home and control his/her actions there to the same extent that it can control that child when he/she participates in school-sponsored activities," Chief Judge Theodore A. McKee said in the court's unanimous opinion in Layschock v. Hermitage School District.

In that case, the school district had disciplined Justin Layshock, who created a fake MySpace profile of his principal on a computer at his grandmother's house. The fake profile played on the principal's purported interest in "big" things, such as smoking a "big blunt," being a "big steroid freak," having stolen a "big keg," and having been drunk a "big number of times."

Judge McKee said that the Hermitage district conceded that the profile did not create a substantial disruption in school. And the court rejected the district's arguments that other facts created a nexus between the parody and school.

For example, the district had argued that Layshock copied a photo of his principal for use in the parody from the district's Web site. But the judge compared today's Web parodies to those of an earlier era and an older technology. He cited a 1979 federal appeals court decision that overturned the discipline of students who had distributed a satirical print journal about their school, even though some articles had been drafted on school typewriters and the publications had been stored in a school closet.

"Here, the relationship between Justin's conduct and the school is far more attenuated," the judge said. "We do not think that the First Amendment can tolerate the school district stretching its authority into Justin's grandmother's home and reaching Justin while he is sitting at her computer after school in order to punish him for the expressive conduct that he engaged in there."

The 3rd Circuit court was more divided over the second case, involving a middle school student's MySpace parody depicting her principal as a sex addict and a pedophile. The fake profile said the principal had interests such as "being a tight-ass," "spending time with my child (who looks like a gorilla)," and "hitting on students and their parents."

The majority in J.S. v. Blue Mountain School District noted that the student created the parody profile off campus, and did not even open it up for all MySpace users to see.

"The profile was so outrageous that no one could have taken it seriously, and no one did," said the majority opinion by Judge Michael A. Chagares.

The dissenters in the Blue Mountain case said the decision "severely undermines schools' authority to regulate students who materially and substantially disrupt the work and discipline of the school."

"In doing so, it allows a student to target a school official and his family with malicious and unfounded accusations about their character in vulgar, obscene, and personal language," said Judge D. Michael Fisher. "I fear that our court leaves schools defenseless to protect teachers and school officials against such attacks and powerless to discipline students for the consequences of their actions."

Fisher, along with some judges who wrote concurring opinions in the two cases, noted the ever-growing impact of social-networking sites and mobile communications devices. He questioned whether the "schoolhouse gate" noted in the U.S. Supreme Court's seminal student speech case, Tinker v. Des Moines Independent Community School District, was defined as a physical barrier anymore.

"The majority embraces a notion that student hostile and offensive online speech directed at school officials will not reach the school," Judge Fisher said. "But with near-constant student access to social networking sites on and off campus, when offensive and malicious speech is directed at school officials and disseminated online to the student body, it is reasonable to anticipate an impact on the classroom environment."

Sean Fields, the associate legal counsel of the Pennsylvania School Boards Association, said the decisions were disappointing and that they would "seriously undermine the authority of school administrators."

"It's more than a little troubling that these decisions send the message to students that the basest form of ridicule will be elevated to the level of protected political speech," said Hayes, whose group filed a friend-of-the-court brief on the side of the school districts.

Witold Walczak, the legal director of the American Civil Liberties Union of Pennsylvania, said in an interview that while the two rulings were "clearly pro-student speech decisions," they did not mean that school officials could not punish students for off-campus speech such as bomb threats or threats to teachers.

"What these decisions say is that for purely critical or offensive off-campus comments, school officials cannot use their official authority to discipline or punish them," said Walczak, who argued both students' cases. "It doesn't mean you can't talk to them or to their parents. And in 99 percent of the cases, the lessons will be learned."

Posted by Mark Walsh at 5:02 PM | Permalink | Leave a comment | Recommend

The U.S. Supreme Court on Monday declined to take up another challenge to school-led recitations of the Pledge of Allegiance.

The justices declined without comment to consider a federal appeals court decision that upheld a New Hampshire law requiring schools to set aside time daily for students to voluntarily recite the Pledge.

The case was one of two in which the lawyer and activist Michael A. Newdow has challenged school recitations of the Pledge because of the inclusion of the words "under God."

A three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, had ruled in November that the New Hampshire requirement does not violate the First Amendment's prohibition against government establishment of religion or other provisions of the U.S. Constitution.

"The New Hampshire School Patriot Act's primary effect is not the advancement of religion, but the advancement of patriotism through a pledge to the flag as a symbol of the nation," said the unanimous opinion, by 1st Circuit Chief Judge Sandra L. Lynch.

The challenge was brought by plaintiffs identified in court papers as the Doe family. The mother and father describe themselves as atheist and agnostic, respectively, with three children in the Hanover, N.H., school district who also question the existence of God. (The school district is a joint one with Dresden, Vt.)

Under the New Hampshire law passed in the wake of the Sept. 11, 2001, terrorist attacks, schools must set aside time for teachers to lead the pledge, but students are not required to recite it. (That would be in keeping with the U.S. Supreme Court's 1943 decision in West Virginia State Board of Education v. Barnette.)

The Doe family's suit alleged that the statute violates the establishment clause, as well as the First Amendment's guarantee of free exercise of religion. The family was being represented by Newdow, a California lawyer and atheist who has carried out his own longtime campaign against the inclusion of "under God" in the pledge and school-led recitations of the pledge.

The statute was defended not only by the state of New Hampshire, but also by intervening students and parents, the Knights of Columbus, and the U.S. Department of Justice, which sought to defend acts of Congress that added "under God" to the pledge in 1954 and reaffirmed that version of the pledge in 2002.

In his appeal to the Supreme Court in Freedom From Religion Foundation v. United States (Case No. 10-1214), Newdow argued, among other things, that atheists are the nation's "most disenfranchised religious minority" and were deserving of the high court's protection.

The state of New Hampshire, the federal government, and other supporters of the state law all declined to file responses to Newdow's appeal, and the Supreme Court did not request any responses.

Newdow has one other pending case involving the Pledge that has not yet reached the high court.

In March 2010, a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled against Newdow and a group of California atheist parents who challenged school-led recitations of the pledge as an unconstitutional establishment of religion. That court also held that the pledge was predominantly a patriotic exercise.

Newdow's request for review by a larger panel of 9th Circuit judges in the case involving the Rio Linda Independent School District in northern California still appears to be pending more than a year after the panel issued its decision.

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

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

In a case with implications for elected school board members and other local officials, the U.S. Supreme Court on Monday ruled that the act of voting by a lawmaker is not protected speech under the First Amendment.

The court upheld a Nevada ethics law for local officials that requires them to abstain from voting on matters implicating their own financial interests or those of a household member, relative, 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. The ethics law applies to school boards in the state.

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

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.

In its decision today in Nevada Commission on Ethics v. Carrigan (Case No. 10-568), the U.S. Supreme Court held that the state ethics law was not unconstitutionally overbroad.

Justice Antonin Scalia, in an opinion that was unanimous in most respects, said the nation has "a history of limiting legislators' ability to participate in matters in which they have a conflict" and that history "suggests that the First Amendment has no application to voting by legislators."

Scalia rejected the argument that voting must be protected speech because lawmakers use their votes to express deeply held and sometimes unpopular views.

"When a legislator votes, ... he does so not as an individual but as a political representative engaged in the legislative process," Scalia said. And voting is not symbolic speech, like flag burning, but an action that discloses the wishes of a lawmaker, he said.

The court also upheld a provision of the Nevada ethics law barring lawmakers who are recused from voting from advocating the passage or failure of the measure in the legislative body. Scalia such restrictions were reasonable "time, place, and manner" limitations.

Justice Anthony M. Kennedy wrote a concurrence in which he expressed concern that the Nevada law could be applied unconstitutionally to communications among candidates, citizens, and groups during the electoral process, such as when a candidate has personal ties to friends with whom he shares views on a particular cause, and then is elected with the help of those friends and votes on legislation "central to the shared cause."

Justice Samuel A. Alito Jr. concurred in the outcome of reversing the Nevada Supreme Court, but suggested that votes by legislators were not completely devoid of "expressive character."

Posted by Mark Walsh at 12:10 PM | Permalink | Leave a comment | Recommend

The U.S. Supreme Court on Monday declined to take up a challenge to a California law that provides in-state college tuition rates to undocumented immigrant students who have attended high school in the state for three years.

The 2001 state law was challenged on behalf of a class of U.S. students paying out-of-state tuition rates at California colleges and universities. Their suit alleged that the state law conflicts with a 1996 federal immigration statute that contains a provision barring states from providing in-state tuition rates to unlawful aliens unless they provide the same rates to U.S. students from any state.

The Washington-based Immigration Reform Law Institute, which brought the suit, says in court papers that nine other states have similar laws.

"Action by this court is needed to ensure that more states do not follow California's policy of calculated defiance and thwart Congress's intent to deny residence-based postsecondary education benefits to illegal aliens," the institute said in its Supreme Court appeal in Martinez v. Regents of the University of California (Case No. 10-1029).

The institute was appealing a November 2010 decision of the California Supreme Court that the state statute did not conflict with the federal immigration law. Rather than conferring in-state tuition benefits based on "residence," the statute provided the benefits based on high school attendance and graduation in the state, the state high court said.

The California high court said that many nonresident students qualify for in-state tuition under the state's law, including children who attend boarding schools in California and those who attended three years of high school in the state but moved before graduation.

The state's "criteria are not the same as residence, nor are they a de facto or surrogate residency requirement," the California Supreme Court said.

The Immigration Reform Law Institute, in its appeal, called that interpretation "implausible."

"Congress could not have intended to allow states to play semantic games in order to give resident tuition to illegal aliens," the institute said. "Congress intended to deny illegal immigrants resident tuition rates."

The group points out that resident tuition is substantially less expensive than out-of-state rates; at the flagship University of California at Berkeley, for example, resident tuition is some $6,230 per semester, compared with $17,670 for non-residents.

California's Board of Regents urged the justices in a brief not to take up the case, saying among other things that there was no conflict among the federal courts of appeals on the issue.

The Supreme Court declined the immigration group's appeal on June 6 without any comment.

Posted by Mark Walsh at 12:40 PM | Permalink | Leave a comment | Recommend

Student speakers and others offered numerous prayers at a Texas high school graduation on Saturday after a federal appeals court dissolved a lower court's order that would have prohibited organized prayers at the ceremony.

"Medina Valley graduates hear prayers aplenty," the San Antonio Express-News said in its coverage of the ceremonies at the high school in the Medina Valley Independent School District.

A local family had sued the school district late last month with the help of Americans United for the Separation of Church and State, challenging the district's plans to include a student invocation and benediction at the graduation as an unconstitutional government establishment of religion.

Last week, U.S. District Judge Samuel Frederick Biery, Jr., sided with the family, citing U.S. Supreme Court decisions such as Lee v. Weisman and Santa Fe Independent School District v. Doe.

"Plaintiffs are likely to succeed on the merits of their claim that the inclusion of prayers at Medina Valley High School graduation ceremonies violates the Establishment Clause of the First Amendment to the U.S. Constitution," Judge Biery said in a June 1 temporary restraining order and preliminary injunction. "Plaintiffs will suffer irreparable harm if the prayers are not enjoined."

The judge ordered the school district to instruct students and other speakers not to present a prayer, including barring them from asking audience members to stand, bow their heads, join in prayer, or say "Amen." The judge said the student speakers could discuss their personal religious beliefs.

The school district appealed to the U.S. Court of Appeals for the 5th Circuit, in New Orleans, where it was supported by Texas Attorney General Greg Abbott and the Liberty Institute, which filed a brief on behalf of Medina Valley High valedictorian Angela Hildenbrand.

On Friday, a three-judge panel of the 5th Circuit issued a short opinion and order dissolving Judge Biery's TRO and preliminary injunction.

"We are not persuaded that plaintiffs have shown that they are substantially likely to prevail on the merits, particularly on the issue that the individual prayers or other remarks to be given by students at graduation are, in fact, school-sponsored," the panel said in its unanimous order in Schultz v. Medina Valley Independent School District.

The fact that the lawsuit would continue was likely little comfort to the family challenging the graduation prayers, and the Express-News reported that Corwyn Schultz, a senior at the high school, did not attend his graduation. Among those offering prayers during the ceremony were Hildenbrand, the valedictorian, and state Rep. John V. Garza, a Republican from San Antonio, who reportedly said, "The judge of all judges commands us to pray."

Posted by Mark Walsh at 7:25 AM | Permalink | Leave a comment | Recommend

A New York City school system rule barring the use of public schools for weekend religious worship services does not violate the First Amendment rights of a Christian church, a federal appeals court ruled on Thursday.

If that conclusion sounds familiar, it's because the controversy between the Bronx Household of Faith and the New York City school district has been raging since 1994. In the first lawsuit, both a federal district court and the U.S. Court of Appeals for the 2nd Circuit upheld the school system's refusal to rent a school to the church, and the U.S. Supreme Court declined to review the case in 1998.

Later, the Supreme Court's 2001 ruling in Good News Club v. Milford Central School prompted the church to try anew. In Good News, the high court held that it was unconstitutional for a school district to bar a private Christian group from after-school use of its facilities when it opened them to a wide range of other community uses.

In 2002, Bronx Household of Faith was granted an injunction allowing it to use Public School 15 for its Sunday worship services, and it has been doing so since then while its second legal challenge has proceeded on the merits. The school system now defends its efforts to deny access based on a 2007 rule that prohibits using school buildings for worship services.

A federal district court granted a permanent injunction to the church. But in a 2-1 ruling on June 2, a 2nd Circuit panel ruled for the school system. The majority said the school system had valid, non-viewpoint discriminatory reasons for barring worship services even when it allowed certain other religious activities in its facilities.

"The board could ... reasonably worry that the regular, long-term conversion of schools into state-subsidized churches on Sundays would violate the Establishment Clause by reason of public perception of endorsement," said the 2nd Circuit majority in Bronx Household of Faith v. New York City Board of Education. "A worship service is an act of organized religion that consecrates the place in which it is performed, making it a church. ... Bronx Household and the other churches that have been allowed access under the injunction tend to dominate the schools on the day they use them."

Writing in dissent, U.S. Circuit Judge John M. Walker Jr. said the school system's rule against allowing religious worship services "is impermissible viewpoint discrimination against protected speech and is unsupported by a compelling state interest. In this case, Bronx Household's worship services fit easily within the purposes of the board's broadly available forum and may not be the object of discrimination based upon the religious viewpoint expressed by the services' participants."

Walker said the majority's ruling could not be squared with Supreme Court decisions on religious viewpoint discrimination, and he said the case presented "important doctrinal considerations worthy of the Supreme Court's attention."

Posted by Mark Walsh at 6:15 PM | Permalink | Leave a comment | Recommend