November 2011 Archives

A federal law designed to expand the scope of federal job-discrimination protections cannot help save the age-bias claims of two school maintenance workers who were reassigned to lower-paying positions, a federal appeals court has ruled.

The three-judge panel of the U.S. Court of Appeals for the 10th Circuit, in Denver, held that the Lilly Ledbetter Fair Pay Act of 2009 was of no help to the two reassigned employees of the Topeka, Kansas, school district.

The federal statute was Congress's response to the U.S. Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., which held that a female worker's claims of unequal pay were barred because she filed her claim after the time limit had passed for challenging the employer's pay-setting decision. The 2009 law, which amended several federal age-discrimination statutes, says the clock starts for new bias claims each time a worker is paid as a result of a discriminatory compensation decision.

The Topeka case involves Dwight C. Almond III and Kevin C. Weems, maintenance workers who were transferred to lower pay-grade positions in 2003 and 2004, respectively, because of the school district's budget problems. Each worker was provided higher pay for two years before their lower compensation kicked in.

In 2006, the two men filed administrative charges alleging the employment decisions were motivated by age bias. Their timing did not meet the requirements of the federal Age Discrimination in Employment Act of 1967, and their cases were dismissed.

On appeal, they argued that the Ledbetter Act revived their case, because each time they were paid at their lower pay rates, the school district's discriminatory decision was having an effect. (The 10th Circuit's decision doesn't mention the workers' ages, but the ADEA covers employees age 40 and older.)

In its Nov. 29 decision in Almond v. Unified School District No. 501, the 10th Circuit panel said the Ledbetter Act does not work the "near total revolution" that the plaintiffs claim.

"By its express terms, the act applies only to claims alleging 'discrimination in compensation'—or, put another way, claims of unequal pay for equal work," the decision says. "The plaintiffs before us don't seek to bring such claims and so the Ledbetter Act offers them no help."

The court said Congress was taking its cues from the dissent of Justice Ruth Bader Ginsburg in the Ledbetter case, but Ginsburg "never advocated a limitations revolution for any claim somehow touching on pay. To the contrary, Justice Ginsburg reaffirmed that hiring, firing, promotion, demotion, and transfer decisions, though often touching on pay, should and do accrue as soon as they are announced."

The Ledbetter Act only governs "accrual" in unequal pay for equal work cases, the court reiterated.

"[T]here's no pay discrimination claim here," the 10th Circuit court said. "True, the plaintiffs were transferred to lower-paying positions. True, this had the ... effect of lowering their compensation. True, we must assume that the transfer decision was discriminatory at this stage of the litigation. But none of this brings the plaintiffs' claim within the ambit of the Ledbetter Act because they don't contend they were ever paid less than others doing the same work."

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The National Education Association and two other education groups have filed a friend-of-the-court brief criticizing Alabama's immigration law as being "about the power of fear."

"The purpose and effect of HB 56 is to use fear and intimidation to drive undocumented immigrants and their children out of the state of Alabama," says the brief, which was filed Monday in a lawsuit that challenges the state law that, among other things, requires schools to determine the citizenship status of students.

The brief was also signed by the Alabama Education Association, the NEA's state affiliate, and the National School Boards Association, based in Alexandria, Va. It was filed in the U.S. Court of Appeals for the 11th Circuit, in Atlanta, which is considering whether to overturn a federal district judge's decision against blocking several of the law's provisions.

The brief says the law's Section 28, which deals with schools' requirement to figure out whether children are in the country legally, clashes with the U.S. Supreme Court's 1982 decision in Plyler v. Doe. In that case, the high court held that 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 Act's enrollment disclosure requirements and its reporting requirements already have and will continue to deter undocumented immigrants from enrolling their children—documented or not—in Alabama's public schools," the school groups' brief states. "As the record evidence demonstrates, parents will decline to enroll their children due to fear that the enrollment process will result in the child's or the parents' deportation."

While the 11th Circuit court weighs requests from the federal government and private groups to block those provisions of the Alabama law that the federal district judge allowed to proceed, the state has clashed with the U.S. Department of Justice over the department's request for information from schools about students who have left since the law went into effect.

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School efforts to regulate T-shirts with potentially disruptive messages have prompted two rulings by separate federal courts, with administrators winning one case but suffering a setback in the other.

A federal district judge in San Francisco earlier this month upheld administrators who barred students from wearing American flag T-shirts to avoid conflicts on Cinco de Mayo, a day when other students were celebrating their Mexican heritage.

U.S. District Judge James Ware found that there had been tensions between white and Hispanic students at Live Oak High School, in the Morgan Unified School District, including altercations on Cinco de Mayo in 2009.

When the 2010 day rolled around, administrators feared that the tensions would resume because a number of students wore T-shirts depicting the U.S. flag.

"The court finds that ... school officials reasonably forecast that plaintiffs' clothing could cause a substantial disruption with school activities," Judge Ware said in his Nov. 8 decision in Dariano v. Morgan Hill Unified School District.

He added that the assistant principal "was warned by two different students that they were concerned that plaintiffs' clothing would lead to violence. These warnings were made in a context of ongoing racial tension and gang violence within the school, and after a near-violent altercation had erupted during the prior Cinco de Mayo over the display of an American flag."

In the other case, a federal district judge in Omaha, Neb., allowed a lawsuit to go forward that challenges a school's suspension of students who wore "rest in peace" T-shirts memorializing a recent graduate who was killed in gang-related violence.

School administrators said such shirts were a form of gang-related apparel and that they could attract more gang violence to the schools.

U.S. District Judge Laurie Smith Camp held that the shirt worn by student Dan Kuhr and others at Millard West High School in the Millard school district was not disruptive and was a form of expression protected by the First Amendment.

"A reasonable jury could find that defendants failed to demonstrate that school officials had anything more than an undifferentiated and remote apprehension of a disturbance when they suspended" one student wearing the shirt, Judge Camp said in her Nov. 8 opinion in Kuhr v. Millard Public School District. "The fact that [the student] had worn his shirts for several days without incident supports a finding that no disruption was likely to result."

(Hat Tip to NSBA's Legal Clips for both opinions.)

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A prominent federal appeals court judge said in a recent speech that courts should defer more to school administrators, and that students today are "spoiled and coddled" and should "learn to roll with the punches" and not be hypersensitive about political or religious messages in schools they might find offensive.

"Modern American kids, it seems to me, have excessive self-esteem," said Judge Richard A. Posner of the U.S. Court of Appeals for the 7th Circuit, in Chicago. "They're spoiled and coddled. Many of them have very aggressive parents."

The judge, a conservative nominee of President Ronald Reagan who is considered one of the leading intellectuals of the federal appeals courts, spoke Nov. 11 in Chicago before the national conference of the Education Law Association. That group is made up of professors who teach education law, as well as practicing lawyers and school administrators.

Judges have all been through school, of course, but "we don't have any systematic knowledge of the educational process," Posner said. "We certainly have no experience running schools. The experts are the school administrators. They know a lot more about it than judges. It seems to me judges ought to be very cautious before they try to displace the authority of the school administrators."

The judge suggested some school litigation was the result of "hypersensitive" reactions by students to what they face in school.

"It seems to me you have to take a certain amount of buffeting to live in society," said Posner, who recounted that in the early 1960s he took the bar exam in a room at Fordham University, a Roman Catholic institution in New York City, where he was greeted by a large crucifix.

It was a "sad-looking Jesus Christ," said Posner, a graduate of Harvard Law School. "What do you expect? It's a crucifixion. He's looking down on us balefully. I'm not religious. Some people would be offended: 'This is a secular activity, what are they doing confronting us with this?' I think people should roll with those particular punches."

This includes not being offended by displays of the "silly" Ten Commandments, Posner said, or by prayers at public school events. Non-believing students should just let their minds wander, he suggested.

Posner's nearly hourlong remarks were wry and funny, and the judge recounted some of the school cases he has helped decide.

In one, Posner actually ruled against school administrators in the case of suburban Chicago high school students who wanted to wear T-shirts that said "Be Happy, Not Gay." The shirts were a response to the National Day of Silence, an effort to show support for gay students and gay rights. Posner was in the majority in two decisions by three-judge panels of the 7th Circuit that ruled in favor of the students who wanted to wear the "Be Happy, Not Gay" shirts.

"First of all, these are high school seniors," Posner said in his speech last week. "Since they have to form political opinions, they ought to be exposed to diversity of thought. ... I think it is problematic for schools to try to suppress criticism of homosexuality."

Also, school administrators' arguments that the "Be Happy" shirts were a form of bullying were not backed by any hard evidence, the judge said.

The decisions were Nuxoll v. Indian Prairie School District No. 204, in 2008, and Zamecnik v. Indian Prairie School District No. 204, in 2011.

The judge had a different view when it came to a group of gifted 8th graders at a Chicago magnet school who protested when school administrators barred them from wearing T-shirts that appeared to disparage non-gifted students at their school as "tards," short for "retards."

Writing for the 7th Circuit panel in Brandt v. Board of Education of the City of Chicago, in 2007, Judge Posner said the "gifties" were "privileged schoolchildren in a school that contains a majority of nonprivileged children" and they did not "recognize the principal's authority or the legitimacy of the school's procedures."

In his speech, Posner said the case involved "rich kids" with a "sense of entitlement being pushed around by school administrators—'Who are they?'"

The judge later said that it might be possible to devise a rule that children below high school age "do not have free speech rights that can be enforced in litigation."

"You have to draw the line. You can't have 3-year-olds screaming for mommy and saying its protected speech," Posner said. "And you could say that we recognize the expertise of the school administrators. ... It would be nice to have a high standard for suits by schoolchildren against schools."

(The judge didn't acknowledge a recent ruling by the U.S. Court of Appeals for the 5th Circuit, in New Orleans, that students in elementary school do have First Amendment free speech rights, which I blogged on here.)

Posner mentioned time and again that school administrators deserve more deference.

"When I was a kid, the notion that children had rights against schools was unknown," said Posner, who is 72. "The notion you could sue a school over grades was unknown, or over discipline."

The judge said he was a bit of a teacher's pet in his school years, and he faced detention only once when he was "falsely accused" of talking in class, or some such infraction.

"It did not occur to me that I could bring a lawsuit over the fact that I was detained in violation of the Fourth Amendment," Posner said. "Now we live in a different world in terms of litigiousness in general. But it's not clear how much society has been improved. Obviously in some areas there have been gains. ... But it's not clear education has been one of them."

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The U.S. Supreme Court on Monday declined to hear appeals concerning mandated vaccines in public schools and a school district's refusal to allow a religious group's fliers to be sent home with students.

The vaccine case involves a suit filed by Jennifer Workman, who feared exposing her 6-year-old daughter to mandatory vaccines required for school because the child's older sister developed developmental disorders that the mother attributes to vaccines. The mother submitted a doctor's note seeking to exempt the 6-year-old from vaccines, but the Mingo County School District, in West Virginia, turned down the request on the advice of the state health department, according to court documents.

The mother sued the district and its officials, claiming, among other things, that the vaccination requirement violated her First Amendment right to free exercise of religion. The mother's "Christian Bapticostal religious beliefs require that she honor God by protecting her child from harm and illness, and that immunizing [the 6-year-old] in this instance would violate those sincerely held beliefs," her suit said.

A federal district judge in 2009 granted summary judgment to the school district on 11th Amendment immunity grounds. The district was under state control and thus was an arm of the state for immunity purposes, the judge said.

In a March 2011 ruling, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruled unanimously that the West Virginia law requiring vaccinations does not unconstitutionally infringe Workman's right to free exercise of religion.

"It has been settled law for many years that claims of religious freedom must give way in the face of the compelling interest of society in fighting the spread of contagious diseases through mandatory inoculation programs," the 4th Circuit court said, borrowing from another court's opinion.

The mother appealed to the Supreme Court, backed by the Charlottesville, Va.-based Rutherford Institute. But the justices declined without comment to hear the appeal in Workman v. Mingo County Board of Education (Case No. 11-380).

In the religious-flier case, a group called the Victory Through Jesus Sports Ministry Foundation sued a Missouri school district over a policy that limited the school distribution of backpack fliers—information from outside groups sent home in elementary students' backpacks.

The Lee's Summit school district modified its policy in 2009 to limit community youth organizations to a one-time flier distribution in the fall, while other non-profit groups were allowed to distribute throughout the school year.

The Victory Through Jesus foundation, which runs faith-based summer soccer camps, said the fall distribution was of little use, and it sued the district claiming a violation of its free speech and equal protection rights. The group lost in federal district court and in the U.S. Court of Appeals for the 8th Circuit, in St. Louis.

In a May 2011 decision, a three-judge panel of the court ruled unanimously that the school district did not create a limited public forum with its flier-distribution policy.
The court said the district first adopted limitations to flier distribution to respond to parent complaints about the volume of materials coming home with their children.

"On this record, we conclude that the District adopted reasonable restrictions on
the backpack distribution of flyers to elementary school students, that it applied those
restrictions in a viewpoint neutral manner, and that it imposed no substantial
restriction on Victory's right to access this nonpublic forum," the 8th Circuit said.

The school district eventually eliminated all backpack distribution of fliers, the court said.

In an appeal to the Supreme Court backed by Liberty Counsel, of Maitland, Fla., the Victory Through Jesus foundation said the district's policy gave administrators unbridled discretion to pick and choose which groups to permit year-round distribution rights.

But the high court declined without comment to hear the group's appeal in Victory Through Jesus Sports Ministry Foundation v. Lee's Summit R-7 School District (No. 11-402).

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A high school newspaper's parody edition and other objectionable articles did not violate an Iowa student free expression statute, and a reprimand given to the faculty adviser had to be removed, a state appellate court has ruled.

"Publishing articles on controversial topics or expressing a viewpoint counter to that of the school administration are not prohibited by the Student Free Expression Law," said a three-judge panel of the Iowa Court of Appeals in a Nov. 9 decision in Lange v. Diercks.

The law was passed in response to the U.S. Supreme Court's 1988 decision in Hazelwood School District v. Kuhlmeier, which held that school administrators did not violate the First Amendment rights of students by exercising editorial control over publications as long as any limits were related to educational concerns.

The Iowa law, enacted in 1989, gives student journalists the right to run student publications without prior restraint from administrators provided materials are not obscene or libelous and do not encourage students to commit unlawful acts.

A state trial court ruled for the school administration, but the state appellate panel said it was convinced the law was adopted to give students "more robust free-expression rights than those articulated by the Supreme Court" in Hazelwood.

The court cited data from the Student Press Law Center which says Iowa is one of at least seven states that have passed laws limiting the effects of Hazelwood.

The case involves two issues of the Tribe-une, the student paper of Waukon High School in the Allamakee Community School District. In an April Fool's parody edition in 2008, there were articles such as "Cheerleaders on 'Roids,'" "Meth Lab Found in Biology Lab," and one suggesting a student's career aspiration was to become a Chippendale dancer.

The school's principal reprimanded faculty adviser Ben Lange for that issue and articles in another that the principal felt encouraged students to violate school rules. The principal said many people were offended and the two issues case "a dark shadow on our school district."

In addition to ruling that the student newspaper editions were protected, the appeals court ordered that the reprimands issued to Lange be removed from his file.

"If a school district is entitled to sanction a journalism advisor for student publications that comply with [the state statute], the statutory protections will be eroded and student speech will be chilled," the court said.

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The U.S. Supreme Court on Monday agreed to decide the constitutionality of sentencing juveniles as young as 14 to life without parole in homicide cases.

The justices granted review of appeals in two cases involving 14-year-olds, one in Alabama and one in Arkansas, who are serving such sentences. Both are represented by the Equal Justice Initiative, a Montgomery, Ala., group that argues such sentences are "cruel and unsual punishments" prohibited by the Eighth Amendment.

The Supreme Court, in a 2005 decision in Roper v. Simmons, prohibited the death penalty for offenders who committed their crimes before age 18. In a 2010 ruling known as Graham v. Florida, the court held that a sentence of life in prison without parole for a juvenile offender in a non-homicide case was unconstitutional.

The recent cases on juvenile sentencing have been watched closely by many educators and child-development experts because they have turned to some degree on advances in knowledge about adolescent brain development.

"Developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds," Justice Anthony M. Kennedy wrote for the court majority last year in Graham. "Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of irretrievably depraved character than are the actions of adults."

"Under this court's reasoning in [Roper] and Graham, the identical analysis which led to the results in those case logically compels the conclusion that consigning a 14-year-old child to die in prison through a life-without-parole sentence categorically violates the Eighth and 14th Amendments," said Bryan A. Stevenson of the Equal Justice Initiative in one of the briefs.

Stevenson stressed similar themes in urging the high court to take up the issue of life-without-parole sentences in the juvenile homicide cases, Miller v. Alabama (No. 10-9646) and Jackson v. Hobbs (No. 10-9647).

"Relative to the cognition of adults and even older adolescents, young teenage judgment is handicapped in nearly every conceivable way," Stevenson said. "Young adolescents lack life experience and background knowledge to inform their choices; they struggle to generate options and to imagine consequences; and, perhaps for good reason, they lack the necessary self-confidence to make reasoned judgments and stick by them."

The Alabama case involves Evan Miller, who was 14 in 2003 when he was convicted with another adolescent of starting a fire that killed a neighbor with whom he had an altercation. Miller was convicted as an adult of capital murder and sentenced to life without parole.The other boy received a lesser sentence in exchange for testifying against Miller.

The Arkansas case involves Kuntrell Jackson, who was 14 in 1999 when he participated with two older boys in the robbery of a video store. Although it was one of the other boys who shot and killed a store clerk with a shotgun, Jackson was convicted of capital murder and aggravated robbery, and the trial judge was legally barred from considering his level of involvement, so Jackson received a life-without-parole sentence.

The appeal on Jackson's behalf asks the high court to consider whether a state's mandatory sentencing policy for accomplices to murder violates the Eighth Amendment when it is imposed on a 14-year-old.

Both Alabama and Arkansas urged the court not to take up the cases.

Alabama said in a brief that last year's Graham ruling was "of sufficiently recent vintage" that no consensus has developed in the states about the imposition of life-without-parole sentences for juvenile homicide offenders.

Stevenson said in his briefs that Miller and Jackson are two of 73 juveniles who are serving such sentences nationwide, and 18 states have imposed such sentences on children 14 or younger.

"Internationally, the United States is the only country in the world where death in prison sentences have been imposed on young adolescents," he says in the brief.

The cases will likely be argued next spring and decided by the end of June.

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Over the sharp dissent of one of its members, a full federal appeals court has declined to reconsider a decision that revived a lawsuit on behalf of a Louisiana student who was expelled and denied alternative education after she attended a school dance under the influence of marijuana.

"In an exercise of raw advocacy for one party over another, [the three-judge] panel has come to the rescue of Morgan Swindle, who was properly kicked out of school after smoking dope, at the expense of Superintendent Randy Pope, who did nothing wrong but is now personally on the line for money damages," Judge Jerry E. Smith wrote in his Nov. 4 dissent.

The full U.S. Court of Appeals for the 5th Circuit, in New Orleans, voted 11-5 not to reexamine the case, with Judge Smith writing his dissent only for himself.

In September, a three-judge panel of the court unanimously reversed summary judgment in favor of the Livingston Parish school district and Pope on one issue in the lawsuit on behalf of Swindle. The student was an 8th grader in October 2005 when she left a school dance to smoke marijuana.

After returning to the dance, Swindle was caught dancing under the effects of the drug. At Pope's recommendation, she was expelled by the school board after a full hearing. Swindle's parents then sought to have the district provide her with alternative education during her expulsion.

The appeals court panel said the family was denied notice and a hearing over the decision not to provide alternative education. When Swindle was readmitted to school the following fall, she was required to repeat 8th grade.

"We conclude that [Swindle] was entitled to some kind of notice and hearing, either prior to or soon after she was deprived of her right to continued education, and that in this case she was afforded neither," the panel said in its Sept. 8 decision in Swindle v. Livingston Parish School Board. The panel said that Swindle had a right to alternative education "recognized and protected by state law."

The panel concluded that Pope, the superintendent, was not entitled to summary judgment on the basis of qualified immunity because case law "unambiguously" required him to allow the student to present her side of the story before denying her alternative education in an expulsion.

Late last week, in his dissent from the full 5th Circuit's refusal to reconsider the case, Judge Smith said the panel's decision "puts this superintendent in jeopardy for an objectively reasonable, good-faith decision."

The superintendent had no reason to think that a separate due-process hearing was required for the Swindle family's alternative education request, Smith said.

"The [panel] opinion confounds the law of qualified immunity by expecting next-to-impossible prescience as to what a randomly chosen panel of this court might expect a school official to do in order to avoid personal monetary liability in a complex situation to which no court has even remotely spoken," Judge Smith said.

Smith's outrage permeates his 18-page dissent, and he concludes by saying that the "panel opinion is a shameless exercise in appellate advocacy on behalf of an undeserving party at the expense of a well-intentioned school official who has done no wrong."

(Hat Tip to How Appealing.)

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A federal appeals court has cast doubt on a Louisiana school district's student assignment plan that had a goal of maintaining racial balance and had allowed the district to be freed of court supervision for desegregation.

A panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, ruled 2-1 on Thursday that a lower court must give greater scrutiny to the student assignment plan of the Ascension Parish school system.

The 20,000-student district, between Baton Rouge and New Orleans, was declared unitary, or legally desegregated, in 2004. When the school board in 2006 was evaluating plans to deal with overcrowding at one of the district's four high schools, it took data about the proportion of African-American students and at-risk students at feeder schools into account. The board cited a desire to maintain its unitary status.

A father of two black children in the district sued, alleging that the board's consideration of race and selection of an option that placed more at-risk students in a particular feeder zone violated the U.S. Constitution's equal-protection clause.

A federal district court held that the school system's plan was race neutral on its face and that evidence was lacking that the school board had a discriminatory motive in adopting it.

In its Nov. 3 decision in Lewis v. Ascension Parish School Board, the 5th Circuit panel called for more factual development in the lower court to determine whether the plan involves race classifications and thus must pass muster under the highest level of constitutional analysis, known as "strict scrutiny."

The lower court must examine the school board's intent in adopting its plan and whether the plan unfairly affected black students more than white students, the appeals court said.

The lower court's "assumption that it might be justifiable to use racially based decisions for the 'benign' purpose of maintaining post-unitary 'racial balance' among the schools in the system is at least in tension with the Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District," the majority said.

In that 2007 case, the high court sharply curtailed the permissible ways in which school systems that were not under court-supervised desegregation plans could consider race in student assignments.

The 5th Circuit majority said the Ascension Parish district could not address school overcrowding "by assigning individual students among the schools based upon disadvantaging one race over another in the assignment of at-risk students, even if the motive in doing so is the benign motive of maintaining unitary status."

Writing in dissent, U.S. Circuit Judge Carolyn Dineen King said the lower court properly analyzed the board's plan under a rational-basis test because the plan was facially race neutral and there was no evidence the board adopted with an intent to discriminate against minorities.

The majority's view "has potentially far-reaching and threatens to require the application of strict scrutiny to actions taken with a mere awareness of their effects on racial demographics," Judge King said.

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The U.S. Supreme Court has declined to take up a case involving school punishment of a student for Internet speech critical of school administrators. However, two other appeals raising similar student free-speech issues are pending before the justices.

The high court on Monday turned away the appeal of Avery Doninger, who, as a Connecticut high school junior in 2007, had criticized school officials in her Web journal. After a dispute with officials at her high school in Burlington, Conn., over the scheduling of a band contest, Doninger referred to administrators as "douchebags" and encouraged her readers to email the superintendent "to piss her off more."

School officials, citing disruption by the emails and Doninger's Web comments, barred her from running for senior class secretary, but she wasn't suspended. Doninger and some of her fellow students were also later barred from wearing T-shirts at a school assemby that said "Support LSM Freedom of Speech," referring to Lewis S. Mills High School.

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

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

In an April decision, another 2nd Circuit court panel agreed that administrators were immune from the suit.

In her appeal to the Supreme Court in Doninger v. Niehoff (Case No. 11-113), the student said her case raised important questions about the right of school administrators to punish students for speech published outside of school on blogs and other Internet forums.

The justices on Oct. 31 declined without comment to hear Doninger's appeal.

Two other appeals involving student Internet speech are pending before the high court.

In Kowalski v. Berkeley County Schools (No. 11-461), a West Virginia student who was disciplined for creating a MySpace page targeting another student at her high school is seeking the court's review.

Kara Kowalski was a student at Musselman High School, in Berkeley County, W.Va., in 2005 when she created a MySpace page that suggested another female student had herpes. School officials concluded that Kowalski had created a "hate" Web site in violation of school policies against harassment, bullying, and intimidation.She was suspended from school for five days and given a "social suspension" of 90 days, meaning she was barred from certain school activities, including the cheerleading squad.

She sued under the First Amendment, but both a federal district court and a panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., upheld school administrators. The 4th Circuit said in a July decision that "school administrators are becoming increasingly alarmed by the phenomenon" of harassment and bullying, and that "where such speech has a sufficient nexus with the school, the Constitution is not written to hinder school administrators' good faith efforts to address the problem."

Meanwhile, the case that may have the best chance of attracting the interest of the justices is an appeal that encompasses two cases decided in June by the full U.S. Court of Appeals for the 3rd Circuit, in Philadelphia.

The appeal in Blue Mountain School District v. Snyder (No. 11-502) involves a 3rd Circuit decision that said 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 3rd Circuit ruled in the Blue Mountain case that a Pennsylvania middle school student's MySpace parody depicting her principal as a sex addict and a pedophile was so outrageous that no one could have taken it seriously.

In a companion case, Layshock v. Hermitage School District, the appeals court overturned the discipline of a Pennsylvania high school student 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."

The 3rd Circuit court found that the profile did not create a substantial disruption in school, and the court rejected the school district's arguments that other facts created a nexus between the parody and the school.

The joint appeal on behalf of the Blue Mountain and Hermitage school districts tells the justices that "these cases present important and urgent First Amendment questions regarding the scope of school officials' authority over student online speech."

"At the moment, school officials are stuck between a rock and a hard place," the appeal says. "They are responsible for protecting students and teachers from online harassment, but in doing so, they might trigger a lawsuit from a student claiming that his or her First Amendment rights have been violated. School officials cannot afford to wait any longer for a definitive answer."

The earliest the justices could announce whether they hear the Kowalski appeal is after their Nov. 22 private conference. A decision on whether to take the Blue Mountain/Hermitage appeal probably wouldn't come until December at the earliest.

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