September 2011 Archives

A federal judge on Wednesday refused to block a provision of a controversial Alabama law on immigration that requires schools to determine the citizenship status of students.

The ruling came as part of a federal lawsuit challenging the broad Alabama law that affects unauthorized immigrants in employment, housing, contracts, and education.

U.S. District Judge Sharon L. Blackburn of Birmingham, Ala., granted the Obama administration's request for a preliminary injunction blocking several of the law's provisions, including one making it illegal under state law for unauthorized aliens to apply for or solicit work.

But she declined to block several other provisions, including one making it a crime for unauthorized aliens to fail to carry documentation papers.

Judge Blackburn also refused to block the law's Section 28, the one requiring public schools to "determine whether the student enrolling in public school was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States."

The provision requires students or their parents to present an original birth certificate at the time of enrollment. For those who cannot present proper documentation, schools are required to assume they are aliens "unlawfully present" in the United States. The measure requires schools to maintain statistics about the numbers of such students.

The U.S. Department of Justice, in its motion seeking to block the Alabama law, said the schools provision "would have a chilling effect on school attendance by children who are aliens or whose parents are aliens."

The department cited Plyler v. Doe, the 1982 U.S. Supreme Court decision 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 department noted that Justice and the U.S. Department of Education had sent a "dear colleague" letter to schools earlier this year reminding them of their obligation to enroll children regardless of their citizenship or immigration status.

In her opinion in United States v. Alabama, Judge Blackburn noted that information about a parent's immigration status is not usually included on an Alabama birth certificate, nor on those from other states or countries.

"For purposes of determining the reach of [Section 28], the court assumes that school officials will not seek to determine the immigration status of parents beyond examination of the child's birth certificate, and that such information is not included on the birth certificate," the judge said. "Therefore, Section 28 does not compel school officials to determine the immigration status of a parent of a student."

The judge also rejected the Justice Department's other arguments against the schools provision. (The discussion of Section 28 begins at Page 102 of the opinion.)

Education Week's Nirvi Shah also reported on Wednesday's decision, at the Learning the Language blog.

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A full federal appeals court said it will rehear a case in which a court panel ruled that a Mississippi school district had a legal duty to protect a student from sexual assaults by a man who checked her out of school by claiming to be her father.

The full U.S. Court of Appeals for the 5th Circuit, in New Orleans, said in a brief order on Sept. 28 that it would rehear the case of Doe v. Covington County School District.

In August, a 5th Circuit panel ruled 2-1 that the school district was potentially liable in a federal civil rights lawsuit filed by the family of a 9-year-old girl who was allegedly checked out of her elementary school six times during the 2007-08 school year by a man who took her off campus and sexually assaulted her.

The school district had a compulsory check-out policy, and the man was not on the list of adults authorized to check out the 4th grade girl, identified in court papers as Jane Doe. (The man was reportedly convicted of sexual battery in the case.)

The panel majority had ruled on Aug. 5 that, in light of the girl's age and the district's alleged failure to comply with its own checkout policy, the district had a "special relationship" with the 4th grader resulting in a constitutional duty to protect her from harm.

The dissenting judge on the panel had said the majority was elevating a school employee's "careless mistake" to the level of a constitutional violation. (I blogged on the panel decision here.)

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A full federal appeals court has ruled that elementary school students have First Amendment free-speech rights to discuss religion with their classmates.

The U.S. Court of Appeals for the 5th Circuit, in New Orleans, held that based on facts alleged in a long-running suit involving incidents in the Plano, Texas, school district, two school principals likely violated the rights of two students who were barred from distributing items such as religious-themed candy canes and pencils with religious messages to fellow students.

"We hold that the First Amendment protects all students from viewpoint discrimination against private, non-disruptive, student-to-student speech," Judge Jennifer Walker Elrod wrote in a part of her opinion, joined by nine of the 16 participating judges. "Therefore, the principals' alleged conduct—discriminating against student speech solely on the basis of religious viewpoint—is unconstitutional under the First Amendment."

However, a separate majority said the two principals were entitled to qualified immunity from personal liability in the lawsuit because rulings on student religious speech in public schools are far from clear for administrators.

"The principals are entitled to immunity because the general state of the law in this area is abstruse, complicated, and subject to great debate among jurists," Judge Fortunato P. Benavides wrote for some of those judges.

The 5th Circuit court's Sept. 27 decision in Morgan v. Swanson includes eight separate opinions covering a total of 100 pages.

Some judges would not have granted immunity to the principals. And those who did not sign on to the majority's opinion on elementary students' rights suggested that it was too soon in the litigation to decide the constitutional issues. Judge Carolyn Dineen King said the case would benefit from further factual development on whether parents were influencing their elementary-age children to proselytize in school.

The lawsuit covers several incidents in which school administrators allegedly barred students from distributing items such as religious-themed candy canes or pencils with messages like "Jesus is the Reason for the Season" or "Jesus loves me, this I know, for the Bible tells me so."

The case has been bouncing up and down for several years, with a 5th Circuit panel in 2009 rejecting a facial challenge to one of the school's policies on students distributing materials to their classmates.

Last year, another 5th Circuit panel ruled that elementary school children have First Amendment rights and that the principals were not entitled to qualified immunity. The full 5th Circuit set aside that ruling, and as noted above, its decision this week went along with the idea of elementary student speech rights but said the area was so unsettled that the principals deserved immunity.

The full 5th Circuit noted that its decision that the principals likely violated the First Amendment rights of the two students applied to only two out of several incidents detailed in the suit.

"The case now before us represents a relatively small part of the plaintiffs' larger suit," Judge Benavides said. "[The] various claims are proceeding in pieces. ... This is not our first word on the issues in this case, and it will likely not be our last."

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A school district violated the First Amendment association rights of an administrative assistant who was demoted after sitting next to her boss at a school board meeting in which his job was on the line, a federal appeals court has ruled.

Kathleen Nichols was a longtime aide to Jeffrey Blanck the general counsel of the Washoe County, Nev., school district. After a dispute with the superintendent, Blanck was suspended and Nichols was transferred to a job in the district's human-resources department. When the school board met in March 2004 to debate Blanck's future, Nichols showed up and sat next to him, though she did not talk to her one-time boss, court papers say. Nichols says she also attended the regular board meeting because a friend of hers was receiving an award.

The school board dismissed Blanck as general counsel at the meeting. The next day, Nichols was summoned by the district's human-resources director and told that district officials questioned her loyalty to the district because of her public show of support for Blanck. She was given a choice of keeping her human-resources job at a frozen salary or taking early retirement.

Nichols took the early retirement, but she sued the district claiming she was demoted in retaliation for exercising her First Amendment rights in associating with Blanck at the board meeting.

A federal district granted summary judgment to the school district, ruling that the district's interest in efficiency outweighed the aide's First Amendment rights. The district noted that Nichols had had a phone conversation with Blanck on the day he was suspended, and it feared she would likely remain loyal to him as he pursued his own wrongful-termination suit.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, reversed the district court and ruled for Nichols. (The panel first issued its 2-1 decision in June, but it issued an amended opinion in Nichols v. Dancer on Sept. 15.)

The appeals panel applied the balancing test for expression on matters of public concern from the Supreme Court's 1968 decision in Pickering v. Board of Education of Township School District 205.

"The fact that public employers have significant leeway to regulate employee speech ... does not mean that their discretion is without bounds," the court majority said. "While acknowledging the importance of workplace efficiency, we have never given public employers carte blanche to retaliate against employees whose conduct does not reasonably threaten to disrupt operations."

"The record offers no support for the claim that Nichols's contact with Blanck threatened to disrupt the district's operations, or that Nichols was predisposed to cause problems down the road," the court added. "The long and short of it is that Nichols is an employee caught in the crossfire between the district and her former boss. In the absence of any evidence that she was disloyal, had disrupted the office or was even reasonably likely to cause disruption in the future ... the district sanctioned her for simply showing up at a public meeting and sitting next to Blanck."

In a short dissent, U.S. Circuit Judge Thomas M. Reavley said he saw no problem with the district moving Nichols from the legal office, where she had access to sensitive case records, to another central office position.

The revised Sept. 15 decision also notes that the full 9th Circuit court had declined the school district's request that a larger panel of judges rehear the case.

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A public school teacher has no constitutional right to display banners in his classroom with slogans such as "In God We Trust" and "One Nation Under God," a federal appeals court has ruled.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled unanimously on Tuesday in the case of Bradley R. Johnson, a veteran mathematics teacher in the Poway Unified School District in California.

Johnson, a calculus teacher at Westview High School, was ordered by administrators in 2006 to remove the banners from his classroom. The teacher contended the phrases were simply patriotic sentiments and variations of language found in documents such as the Declaration of Independence. District officials told Johnson that he had to remove the banners because the display of the slogans without context promoted a "Judeo-Christian" viewpoint.

Johnson complied, but he soon sued the district under the First and 14th Amendments of the U.S. Constitution, as well as under the California Constitution. In 2008, a federal district judge ruled for Johnson, saying the school district had created a limited public forum for teachers to express their views and Johnson's banners "communicate fundamental political messages and celebrate important American shared historical experiences."

In its Sept. 13 decision in Johnson v. Poway Unified School District, the 9th Circuit court panel said the district court was wrong in failing to analyze Johnson's banners as speech by a government employee, particularly under the landmark 1968 Supreme Court case of Pickering v. Board of Education of Township School District 205.

"Unlike Pickering, [a teacher] who wrote a letter to his local newspaper as any citizen might, ... Johnson took advantage of his position to press his particular views upon the impressionable and captive minds before him," said the opinion by U.S. Circuit Judge Richard C. Tallman.

The court said nothing in its ruling would prevent Johnson from propounding his own views on the nation's religious heritage or how God places prominently in our nation's history.

"He may generally do so on the sidewalks, in the parks, through the chat-rooms, at his dinner table, and in countless other locations," Judge Tallman said. "He may not do so, however, when he is speaking as the government, unless the government allows him to be its voice."

"Because the speech at issue owes its existence to Johnson's position as a teacher, Poway acted well within constitutional limits in ordering Johnson not to speak in a manner it did not desire," the court said.

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A federal appeals court has upheld a Wisconsin school district's use of a Christian church for its high school graduation ceremonies, saying the practice was not an unconstitutional government establishment of religion.

A panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled 2-1 that the church graduations did not result in government-coerced participation in religion or government endorsement of religion.

The case involves the Elmbrook school district in suburban Milwaukee, which from 2000 to 2009 used a local church auditorium for the graduation ceremonies of its two high schools, as well as other facilities of the same church for events such as senior honors nights.

The challengers, a group of non-Christian students and parents, objected to the school district's rental of Elmbrook Church, an evangelical church with many Christian symbols on display throughout its facility. The challengers' suit alleged that the superintendent's membership in the church played a role in its selection (which the superintendent denies), and that during some graduation ceremonies the church operated its information booth or passed out evangelical literature.

A federal district court ruled for the district, and in a lengthy Sept. 9 decision in Doe v. Elmbrook School District, the 7th Circuit court affirmed.

"Graduates are not forced—even subtly—to participate in any religious exercise or other sign of religious devotion, or in any other way to subscribe to a particular religion or even to religion in general." said the majority opinion by Judge Kenneth F. Ripple. "They are not forced to take religious pamphlets, to sit through attempts at proselytization directed by the state or to affirm or appear to affirm their belief in any of the principles adhered to by the church or its members. Instead, the encounter with religion here is purely passive and incidental to attendance at an entirely secular ceremony."

In his dissent, Judge Joel M. Flaum said the school district's use of a church that is engaged in proselytization sends a message of government endorsement of religion.

"I believe that conducting a public school graduation ceremony at a church—one that among other things featured staffed information booths laden with religious literature and banners with appeals for children to join 'school ministries'—runs afoul of the First Amendment's establishment clause," Judge Flaum said.

Elmbrook's high schools have not used the church for graduation ceremonies since 2009. They have used a new school district fieldhouse instead, but the 7th Circuit panel unanimously agreed the case was not moot because some plaintiffs sought damages and the district said there was some chance the church might be used in the future.

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A full federal appeals court has set aside a panel decision that struck down Michigan's ban on using racial preferences in admissions in state colleges and universities.

The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, will give "en banc" review of the 2006 Michigan measure that amended the state constitution to bar not only state colleges but also school districts, other local governments, and the state itself from giving preferential treatment based on race, sex, color, ethnicity, or national origin.

The Associated Press reports on the development here, while the Detroit Free Press reports here.

In a July 1 decision, a panel of the 6th Circuit had ruled 2-1 that the Michigan ballot measure violated the equal-protection clause of the U.S. Constitution's 14th Amendment because it put unfair political burdens on issues of importance to racial minorities. I blogged on that ruling here.

The full 6th Circuit's action on Sept. 9 vacates that decision, allowing the full court to take up the case.

Michigan Attorney General Bill Schuette had asked for the review by the full 6th Circuit court.

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A state high school athletic authority's exclusive contract with one company to live stream sports contests over the Web does not violate the free press rights of other media organizations that sought to cover the same events, a federal appeals court has ruled.

The unanimous decision by a three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, came in a case involving rules developed by the Wisconsin Interscholastic Athletic Association for coverage of post-season tournament action in numerous sports.

The association in 2005 contracted with a video production company, American-HiFi, to live stream almost all post-season contests in sports such as football, basketball, ice hockey, wrestling, and swimming. The rules barred other outlets from any live coverage of the association's contests and limited recorded footage to two minutes in news shows, sports programs, or websites. Other media outlets could seek permission, and pay a fee, to stream athletic events that American-HiFi decided not to carry. (The WIAA has long had separate contracts with TV networks for exclusive broadcast or cable coverage of some sports.)

A Gannett newspaper that publishes in Wisconsin defied the rules by live streaming four playoff football games and refusing to pay the association any fees.

The WIAA then took the offensive, suing Gannett and the Wisconsin Newspaper Association, seeking a court judgment that it had the ownership rights in any "transmission, internet stream, photo, image, film, audiotape, writing, drawing, or other depiction or description of any game" and could grant the exclusive right to others.

A federal district court agreed with the Wisconsin athletic group, and in an Aug. 24 decision, the 7th Circuit panel upheld the district court.

"Viewed in the proper light, ... WIAA's Media Policies do not, as Gannett [and others] fear, threaten the fundamental right of the press to comment on and cover school sporting events," said the court's opinion in Wisconsin Interscholastic Athletic Association v. Gannett Co. Inc. "The media are free under the policy to talk and write about the events to their hearts' content. What they cannot do is to appropriate the entertainment product that WIAA has created without paying for it. WIAA has the right to package and distribute its performance; nothing in the First Amendment confers on the media an affirmative right to broadcast entire performances."

Education Week's Bryan Toporek reported on this case last week in his Schooled in Sports blog.

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