tag:blogs.edweek.org,2009:/edweek/school_law/55 2009-11-06T19:56:39Z Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than 17 years. He writes about school-related cases in the U.S. Supreme Court and in lower courts. Movable Type 4.31-en tag:blogs.edweek.org,2009:/edweek/school_law//55.10942 2009-11-06T18:00:09Z 2009-11-06T19:56:39Z

A handful of lawsuits and new policies over school e-mail are making headlines: The Wisconsin Supreme Court next week will take up a case about whether e-mails composed by teachers on school computers, both personal and work-related, constitute public records...

Mark Walsh http://blogs.edweek.org/edweek/school_law/ Wisconsin Rapids Tribune reports here. The Wisconsin high court takes up the case on Nov. 10. Meanwhile, the Lawrence, Mass., Eagle-Tribune reported last week that a principal in the Lawrence school district has sued a school board member over an e-mail sent to other board members. The e-mail discussed the settlement of a previous lawsuit by the assistant principal, who was a gym teacher at the time. The new suit alleges that the board member's e-mail includes some false information and violated her privacy rights, according to this story in the Eagle-Tribune. Finally, Katie Ash has this story in Education Week about policies requiring teachers to log electronic interactions with students via e-mail or cell phones. The policies are motivated in part to combat sexual abuse of minors by school employees, but some educators argue that there are many legitimate reasons they keep in touch with students electronically, the story reports.]]> tag:blogs.edweek.org,2009:/edweek/school_law//55.10868 2009-10-30T13:00:53Z 2009-10-30T12:55:19Z

A Fordham study says many states manage student databases in ways that threaten privacy.

Mark Walsh http://blogs.edweek.org/edweek/school_law/ "Children's Educational Rights and Privacy: A Study of Elementary and Secondary School State Reporting Systems," recommends that student data maintained at the state level be made anonymous through the use of "dual-database architecture." Third-party data processors, such as private firms, should be made to sign agreements that address privacy obligations, the report says. And state education departments should each have a chief privacy officer to protect data, the report says. The full report is linked above, and a press release is here, and a Washington Post story about the report is here.]]> tag:blogs.edweek.org,2009:/edweek/school_law//55.10746 2009-10-17T15:53:26Z 2009-10-17T16:59:13Z

The 6th Circuit deadlocks on a key challenge to the No Child Left Behind Act, thus upholding a lower court's dismissal of the case.

Mark Walsh http://blogs.edweek.org/edweek/school_law/ Pontiac School District v. Secretary of the U.S. Department of Education, with eight judges accepting one of the NEA's arguments against the NCLB, and eight judges backing various arguments supporting dismissal of the case. "Consequently, the judgment of the district court is affirmed," said a short order that accompanied the court's opinions. Central to the case is a provision in the NCLB law that says, "Nothing in this act shall be construed to ... mandate a state or any subdivision thereof to spend any funds or incur any costs not paid for under this act." Judge R. Guy Cole Jr. wrote an opinion, signed by seven other judges, that agreed at least in part with the school districts and the NEA that the so-called unfunded-mandates provision in the NCLB law meant that states and school districts could not be required to spend their own money to comply with the law. "NCLB rests on the most laudable of goals: to 'ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education,'" wrote Judge Cole, who was the author of a panel decision in the case that revived the NEA's suit last year. "Here, nobody challenges that aim. But a state official deciding to participate in NCLB reasonably could read [the unfunded-mandates provision] to mean that the state need not comply with requirements that are 'not paid for under the act' with federal funds." Judge Cole's opinion, however, fell one vote short of controlling the outcome of the case. Judge Jeffery S. Sutton, joined by five other judges, wrote an opinion that disagreed with Judge Cole's view on the merits of the NCLB arguments. "Depending on whom you ask, the No Left Child Behind Act might be described in many ways: bold, ground-breaking, noble, naïve, oppressive, all of the above and more," Judge Sutton wrote. " But one thing it is not is ambiguous, at least when it comes to the central tradeoff presented to the states: accepting flexibility to spend significant federal funds in return for (largely) unforgiving responsibility to make progress in using them." Judge David W. McKeague, joined by two other judges, said in an opinion that he would not rule on the merits because he believed the NEA's suit lacked necessary plaintiffs--the states of Michigan, Texas, and Vermont. That meant a total of eight judges supported dismissal of the case, albeit on differing grounds, and that deadlock meant that a federal district judge in Detroit's dismissal of the case was upheld. I haven't seen any reaction on the Web yet from the U.S. Department of Education or from the NEA. It is noteworthy that arguments by NEA General Counsel Robert H. Chanin made more headway with the 6th Circuit than seemed evident after oral arguments. I reported in the blog here on the en banc oral arguments in the case last December (with a slightly revised story appearing in Education Week here.) ]]> tag:blogs.edweek.org,2009:/edweek/school_law//55.10733 2009-10-16T12:48:41Z 2009-10-16T12:44:43Z

The suit alleges that a district violated the Americans with Disabilities Act by failing to assign the teacher to a classroom with natural light.

Mark Walsh http://blogs.edweek.org/edweek/school_law/ Ekstrand v. School District of Somerset , a panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, restored her suit. The panel held unanimously that the district could not have initially known that a classroom with natural light was the only effective accommodation for a teacher with seasonal affective disorder. But Eckstrand eventually presented information from one of her doctors that natural light was key to her improvement. "Once aware of natural light's medical necessity to Ekstrand, and having been informed by Ekstrand only two weeks earlier that she was willing and able to return to work in a classroom with natural light, the school district was obligated to provide Ekstrand's specifically requested, medically necessary accommodation unless it would impose an undue hardship on the school district," the appeals court said. The district faced little hardship because a teacher with a natural-light classroom was willing to switch with Ekstrand, and empty classroom was also available, the court said.]]> tag:blogs.edweek.org,2009:/edweek/school_law//55.10732 2009-10-16T12:46:33Z 2009-10-16T12:43:09Z

A federal district judge has dismissed a lawsuit alleging that the teacher-licensure test in Massachusetts discriminates against minorities and those whose second language is English.

Mark Walsh http://blogs.edweek.org/edweek/school_law/ Alston v. Massachusetts, Judge Harrington granted the defendants motions to dismiss, largely on the grounds that the plaintiffs had failed to follow procedural steps with a state anti-discrimination agency and had waited too long after the 2006 dismissals to file the suits earlier this year. In a brief bit of dicta, Judge Harrington scolded the plaintiffs for attacking the teacher test. "A person who fails the bar examination does not practice law!" the judge said. "A competent teacher is one who has thorough knowledge of his subject and the faculty of communicating that knowledge effectively to his students. No student deserves to suffer an inferior education because he was exposed to a teacher less than qualified." The plaintiffs should seek to "ameliorate their scholastic deficiencies rather than to seek to undermine the standards" of the teaching profession, the judge said. The Boston Globe reports on the case here.]]> tag:blogs.edweek.org,2009:/edweek/school_law//55.10715 2009-10-14T21:26:00Z 2009-10-14T21:24:37Z

Often, after big, complicated civil rights litigation in such areas as school desegregation and the reform of foster care, there is a second battle: over attorneys' fees for the prevailing party. The U.S. Supreme Court today took up an important...

Mark Walsh http://blogs.edweek.org/edweek/school_law/ Perdue v. Kenny A. (Case No. 08-970), which drew some interesting friend-of-the-court briefs. The National School Boards Association filed such a brief on the side of the state of Georgia, which is seeking to overturn the enhanced award. The NSBA argues that the case is "of extreme importance" to schools because of the potential harmful effect of enhanced fee awards to school systems and their taxpayers. "Like the present case, litigation against school districts frequently results from chronic underfunding that leads to systemic deficiencies," the NSBA brief says. "In such cases, public schools will often seek to resolve the matter through mediation or negotiations that culminate in settlements or consent decrees that call for significant policy changes, structural overhauls, programmatic improvements, and increased funding to correct the deficiencies. But under ... enhanced fee award theory, courts could reward the plaintiffs' attorneys with large performance bonuses that school systems can ill afford to pay." Joining briefs supporting the bonus fees are several groups that are often behind lawsuits against school districts, including the American Civil Liberties Union and the NAACP Legal Defense Fund on the left, and the Alliance Defense Fund and the American Center for Law and Justice on the right. The conservative groups, in their brief, argue that attorney's fees undergird the system of private enforcement of the nation's civil rights laws. "Attorney fees are not merely about compensating attorneys who undertake the representation of those oppressed and damaged by government, often at significant risk to their regular practice," says the brief by Alliance Defense Fund, the ACLJ, and other groups. "Just as important, and possibly more so, they provide the incentive for governments, especially with the outcry of local taxpayers upon the media announcement of an attorney fee judgment, to reform their unlawful conduct and refrain from civil rights violations in the future." And alluding to a noteworthy case pressed by one of the conservative legal groups, the brief says, "A local school district can spend a million dollars fighting a child who wants to hand a candy cane with a religious poem attached to his friends during Christmas, and then hold media events expressing a need for money for education." These school examples and arguments weren't discussed during oral arguments today, but there was still a lively discussion. Justice Sonia Sotomayor noted that the high court has held "that it should be a rare and exceptional circumstance" to award an enhanced fee. "The difference that we are engaged in is whether the quality of performance can ever constitute that rare exception that would justify a district court saying, you performed greater than what the market would have valued you at before your performance," she said. Pratik A. Shah, an assistant to the U.S. solicitor general, arguing on Georgia's side, said the law does not permit enhanced fee awards for outstanding attorney performance. One case in which an enhanced fee could be authorized would be "where an attorney takes on a particularly unpopular client or cause that causes some external harm, external to the case, to his practice or income." Justice Samuel A. Alito Jr. later told the lawyer arguing for Children's First and the enhanced-fee award that he was troubled because "here the district judge in effect takes four-plus million dollars from the taxpayers of Georgia and awards it above the lodestar calculation to these attorneys and says ... this was the best performance I have seen in 28 years. But it seems totally standardless, and I see no way of policing it, and I see a great danger that trial judges are going to use this as a way of favoring their favorite nonprofit foundation or their favorite cause or their favorite attorneys, because they think they generally do good work." Justice Antonin Scalia added: "I don't like judges -- it's certainly not in the tradition of the bench -- to comment upon the performance of lawyers. I can't tell you how often I would like to give a separate grade for the lawyer who won a case. You know, one grade for the case and the other for the lawyer. But we don't do that." Paul D. Clement, a former U.S. solicitor general under President George W. Bush and the lawyer arguing for the enhanced award, later was challenged by Chief Justice John G. Roberts Jr. about whether the outcome of a civil-rights case is the result of a lawyer's strong performance or the judge's interpretation of the law. "Maybe we have a different perspective," the chief justice told Clement. "You think the lawyers are responsible for a good result, and I think the judges are." In a breezy retort that not every lawyer arguing before the justices could get away with, Clement alluded to Chief Justice Roberts's former career as a highly successful Supreme Court advocate. "Maybe your perspective has changed, your honor," Clement said to the chief, drawing laughter in the courtroom. A decision in the case is expected by next July. ]]> tag:blogs.edweek.org,2009:/edweek/school_law//55.10641 2009-10-07T03:28:12Z 2009-10-07T03:24:52Z

A federal district judge upheld the practice of schools leading the Pledge of Allegiance amid a challenge by parents who objected to exposing their children to the words "under God" in the pledge.

Mark Walsh http://blogs.edweek.org/edweek/school_law/ West Virginia State Board of Education v. Barnette.) The Does' suit alleges violations of the First Amendment's guarantee of free exercise of religion and prohibition against government establishment of religion, among other legal theories. (The family is being represented by California lawyer Michael Newdow, an 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.) In a Sept. 20 opinion, U.S. District Judge Steven J.McAuliffe noted that the federal government stepped in to the case to defend the federal Pledge of Alliegiance statute. But since the federal pledge law does not command anyone to recite it, or lead its recitation, the federal law was not really at issue, the judge said. Judge McAuliffe devoted most of his analysis to the New Hampshire pledge law. Analyzing the state law under various Supreme Court establishment clause tests, the judge concluded that that statute primarily has a secular purpose of promoting patroitism among schoolchildren. "The legislative history contains a far-reaching discussion of patriotism, and places enactment of the statute in the context of a response to the attacks of September 11, 2001," the judge said. "That context supports the conclusion that patriotism, rather than support of theism over atheism or agnosticism, was the guiding force behind the enactment of the New Hampshire Pledge statute." The judge also adopted the view that the addition of the words "under God" to the pledge by Congress in 1954 was more of a political response to Communism than a desire to promote monotheism. "The Pledge, taken as a whole, is a civic patriotic affirmation, not a religious exercise, and inclusion of the words 'under God' constitutes, at the most, a form of ceremonial or benign deism," Judge McAuliffe said. The judge granted the school district's motion to dismiss the lawsuit. The Manchester Union-Leader has this story on the decision. It took me a little bit of searching to find the opinion in Freedom From Religion Foundation v. Hanover School District. If that link doesn't work, try the search function on the home page of the U.S. District Court for the District of New Hampshire. ]]> tag:blogs.edweek.org,2009:/edweek/school_law//55.10610 2009-10-05T14:41:23Z 2009-10-05T14:45:01Z

The U.S. Supreme Court denied review of several education appeals, including cases about the Pledge of Allegiance in schools, T-shirts bearing Confederate symbols, peer sexual harassment, and special education.

Mark Walsh http://blogs.edweek.org/edweek/school_law/ previewed here last month. The denials of review of the following cases all came without comment by the justices and are not rulings on the merits of the appeals. Here are the education cases denied review on Oct. 5: Frazier v. Smith (Case No. 08-1351) In one of the most prominent, the justices declined to hear a challenge to a Florida law that requires students to have parental permission to refuse to participate in daily recitations of the Pledge of Allegiance. A three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, held last year that the law was meant to vindicate parents' rights to control the upbringing of their children, not students' rights. The appeals panel struck down a provision requiring students to stand even if they have permission to not recite the pledge, but it upheld the parental-permission requirement. The law was challenged by Cameron Frazier, who as a high school student in 2005 was rebuked at his school for refusing to stand or recite the pledge. Barr v. LaFon (No. 08-1325) Also denied was an appeal on behalf of three Tennessee students who challenged their school district's prohibition of displays of the Confederate flag. A panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled last year in favor of the Blount County, Tenn., school district and administrators in a challenge to the prohibition by students who say they wanted to express their Southern heritage by wearing clothing depicting the Confederate flag. The appeals court noted that school officials were responding to several racial incidents in enacting the ban. Hudson Area Schools v. Patterson (No. 09-143) The justices refused to hear the appeal of a Michigan school district that faces potential liability under federal law for its response to the sexual harassment of a student by his peers. A panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, held early this year that the suit filed by the parents of the harassed student should go to trial. The parents' suit alleges that the Hudson Area Schools in Michigan failed to adequately respond to a pattern in which students harassed the boy almost daily with taunts such as "queer" and "faggot." The school district claimed in court papers that it did take action in response to the harassment, and it urged the justices to review the lower court's denial of summary judgment. L.M. v. Capistrano Unified School District (No. 08-1414) The justices declined an appeal stemming from two California parents' challenge to a school district policy that limited the parents' educational expert to only 20 minutes observation of the district's proposed school placement for their autistic son. The parents contended the limit violated their rights under the federal Individuals with Disabilities Education Act, but they lost in a lower court. ]]> tag:blogs.edweek.org,2009:/edweek/school_law//55.10567 2009-09-30T18:57:20Z 2009-09-30T18:53:45Z

Although there are no cases directly involving K-12 schools on the docket for the new Supreme Court term, there are still several granted cases worth looking at.

Mark Walsh http://blogs.edweek.org/edweek/school_law/ an item about several hot-button education appeals pending review in the U.S. Supreme Court. But I noted that none of those cases, on the Pledge of Allegiance, Confederate T-shirts, book challenges, and religious messages at graduation, had any guarantee of being granted full review by the justices. For the moment, there are no cases directly involving K-12 schools on the docket for the new Supreme Court term that officially opens on Oct. 5. Nevertheless, there are several granted cases that hold potential implications in education. Religious Symbols in the Public Square Salazar v. Buono (Case No. 08-472) is one of those establishment clause cases, like the Ten Commandments cases and the Summum case from last term, that bear watching even though the setting is not a school. At issue in the case is a cross in the Mojave National Preserve in California that is the latest version of one erected as a monument to Americans who died in World War I. The case is complicated by issues of standing and a complex series of actions by Congress to rescue the cross from being removed as an unconstitutional government establishment of religion. The Washington Post on Tuesday had this excellent on-site story about the case. One reason the education community should keep an eye on the case is that, like all other establishment clause cases in the Supreme Court, this one has attracted the participation of groups on the left and right that battle over all forms of religion in the public schools. Groups supporting the desert cross argue in briefs why the court can distinguish its long line of cases about religious displays or prayers in public schools from the case before them. Groups siding with the challenge to the cross argue in favor of broad rules of "standing" permitting challenges to religious practices in schools and on government property. The case is set for argument on Oct. 7. Life Sentences for Juvenile Offenders In two cases from Florida, the court has agreed to decide whether sentencing juvenile offenders to life without parole for crimes other than homicide violates the Eighth Amendments prohibition against cruel and unusual punishment. The cases involve an offender who was 13 when he was sentenced to life for the robbery and rape of an elderly woman, and an offender who committed armed robbery at age 16 and was sentence to life without parole when he violated his probation at age 17. The cases are Sullivan v. Florida (No. 08-7621) and Graham v. Florida (No. 08-7412). The cases will be heard four years after the Supreme Court, in Roper v. Simmons, ruled that the death penalty for crimes committed by offenders under age 18 violated the Eighth Amendment, in part because of the diminished moral culpability of juveniles. A group of prominent educators, including Geoffrey Canada of the Harlem Children's Zone, has filed a friend-of-the-court brief on the side of the juvenile offenders, which argues that "sentencing juveniles to life without parole for non-homicide crimes committed during their youth wrongly ignores children's inherent potential to mature and rehabilitate, and cruelly deprives adolescents of any opportunity to utilize those qualities to one day become contributing members of society." The cases are set for argument on Nov. 9. Attorneys' Fees in Civil-Rights Cases In a case stemming from litigation over Georgia's foster-care system, the justices will decide whether lawyers who press such institutional-reform cases may be awarded extra money on top of normal attorneys' fees when their efforts bring about major changes. At issue in Perdue v. Kenny A. (No. 08-970) is a federal district judge's decision to award an enhancement of $4.5 million on top of a $6 million attorneys' fee award to lawyers who brought a class action over the state's system for handling children in foster care. The judge concluded the enhanced fees were justified because the lawyers provided exceptional representation and forced significant changes in the system through a consent decree. The National School Boards Association has filed a friend-of-the-court brief on the side of the state of Georgia. The NSBA notes that school systems are often at the center of institutional-reform litigation, and it argues that the enhanced attorneys' fee structure authorized by the lower courts "will result in scarce resources being redirected toward attorneys and litigation, and away from improving student achievement." Civil rights groups, meanwhile, have filed briefs arguing that Congress intended laws that authorize attorneys' fees for prevailing parties to permit judges to order enhanced awards in exceptional circumstances. The case will be argued Oct. 14. Student Loans In an important case for higher education and the student loan business, the justices will hear the appeal of a lender whose college loans totaling $13,250 to an Arizona man were discharged by a bankruptcy court. Federal law says student loans cannot be written off in bankruptcy except in cases of "undue hardship" proven in an adversary proceeding, and there was no such proceeding in the Arizona man's case. A federal appeals court ruled last year that the lender had received notice of the debtor's plan to discharge some of his student loan obligations in a Chapter 13 bankruptcy proceeding and did not object to it. The appeal is United Student Aid Funds v. Espinosa (No. 08-1134). The case has been set for argument on Dec. 1. ]]> tag:blogs.edweek.org,2009:/edweek/school_law//55.10575 2009-09-30T15:45:31Z 2009-09-30T15:40:23Z

The justices add several cases to their docket for the new term, but no education cases were among them.

Mark Walsh http://blogs.edweek.org/edweek/school_law/ here.) Today's orders list basically dealt with the handful of grants from the big summer conference list. No appeals were denied today, although come Monday most of the hundreds of cases from the summer list probably will meet that fate. A couple of cases granted today bear a quick mention here. One is Lewis v. Chicago (Case No. 08-974), which involves a statute-of-limitations question under Title VII of the Civil Rights Act of 1964. A group of African-American firefighters filed a lawsuit challenging an employment test as having a disparate impact on minority applicants. But the city used the results of the test for different rounds of hiring over several years. A federal appeals court said the minority applicant's suit was time-barred because it was filed more than 300 days after the city first announced the test results. The new case is almost Ledbetter v. Goodyear meets Ricci v. DeStefano. The other is McDonald v. Chicago (No. 08-1521), an important case about whether the Supreme Court's broad interpretation of an individual's right to possess guns under the Second Amendment will apply in the same way against state and local gun restrictions. The court's 2008 decision in District of Columbia v. Heller, involving restrictions in the nation's capital, did not raise some of the same issues about "incorporating" the Second Amendment toward the states. The relevance for schools is that in the Heller case, the Chicago public schools had filed a friend-of-the-court brief urging the high court to uphold restrictions on guns to help stem the tide of urban violence. (See my blog post here.) I'm sure there will be similar briefs in the new case.]]> tag:blogs.edweek.org,2009:/edweek/school_law//55.10551 2009-09-28T20:04:03Z 2009-09-28T20:00:38Z

A new book of essays examines the understudied role of the judiciary in the American education system.

Mark Walsh http://blogs.edweek.org/edweek/school_law/ I reported on a conference at the Thomas B. Fordham Institute about the role of the judiciary in the American education system, which conference organizers correctly labeled an understudied topic. The conference included draft papers under the theme of "From Brown to 'Bong Hits': Assessing a Half-Century of Judicial Involvement in Education." Now, Fordham and Brookings Institution Press have published a book of essays stemming from that conference: From Schoolhouse to Courthouse: The Judiciary's Role in American Education. "The multiple roles assumed, and decisions issued, by state and federal courts in this domain in recent years add up to a large, mixed bag of influences, many of them malign, on the K-12 education enterprise and earnest efforts to reform and renew it," Fordham President Chester E. Finn Jr. writes in the book's foreword. "Most jurists know plenty about the law, but few know much about schools and the conditions in which those responsible for teaching in and leading them are most apt to succeed." In an overview essay, Joshua M. Dunn, an associate professor of political science at the University of Colorado-Colorado Springs, and Martin R. West, an assistant professor at the Harvard Graduate School of Education, note that in 1948 Justice Robert H. Jackson, in a concurrence in McCollum v. Board of Education, warned his Supreme Court colleagues against establishing themselves as "a super board of education for every school district in the nation." But court involvement has, "by any measure, grown exponentially over the past 60 years," Dunn and West write. "Seemingly no aspect of education policy has been too insignificant to escape judicial oversight." The duo, who served as editors of the collection, recruited talented academics for 11 chapter-length essays on such topics as school desegregation, education finance, high-stakes testing, special education, school choice, religion in public education, school discipline, and court cases under the federal No Child Left Behind Act. These papers hit all the hot-button issues in education law (as well as some of the duller ones), and are generally on target in their emphases and analyses, in my opinion. My chief criticism of the collection, which I also touched on when reporting on the draft papers and confence last October, is that it accepts without much challenge the view that litigation and judicial intervention have often been barriers to real school improvement. This is undoubtedly true in some respects, but the collection lacks perspectives from civil rights practitioners or other advocates for students or school employees. Having said that, though, I would still heartily recommend the book for anyone with an interest in school law: professors, practicing attorneys, education students, administrators, policymakers, and the most interested teachers and parents (as well as students). It might be nice if a few federal judges or Supreme Court justices, or at least their law clerks, got their hands on the volume, too. Since Fordham held its conference last year, the Supreme Court issued four new decisions on school law issues, in the areas of student searches, sexual harassment of students, special education, and services to English-language learners.The impact of the courts on our schools does not appear to be lessening anytime soon.]]> tag:blogs.edweek.org,2009:/edweek/school_law//55.10497 2009-09-23T20:27:51Z 2009-09-23T20:24:22Z

Appeals pending at the court involve school disputes over the Pledge of Allegiance, Confederate T-shirts, challenges to books in public school libraries, and student religious messages at graduation ceremonies.

Mark Walsh http://blogs.edweek.org/edweek/school_law/ decided several important education cases in its last term, in areas such as student searches, sexual harassment, special education, and the adequacy of services for English-language learners. For the term that officially begins Oct. 5, the justices have not granted full review in any major education cases--yet. But a handful of appeals pending at the court involve provocative issues, including the Pledge of Allegiance, Confederate T-shirts, challenges to books in public school libraries, and student religious messages at graduation ceremonies. A decision by the court to grant review in one or more of these cases would quickly make the 2009-10 term far more interesting for educators, students, and parents. (I plan a post next week on the handful of cases granted for the new term that have some implications for education.) Here are the hot-button appeals pending at the court (with emphasis, again, that these cases have not yet been granted review): Pledge of Allegiance A Florida law that requires students to have parental permission to decline to participate in daily recitations of the Pledge of Allegiance is being challenged in a lawsuit backed by the American Civil Liberties Union. Cameron Frazier says in court papers he was singled out and humiliated at his high school in 2005 when he refused to stand for the pledge. The Florida law requires all students to stand and recite the pledge unless a parent provides written permission for a student to be excused. A federal district court struck down the law on its face and as applied to Frazier, but a three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, held last year that the law was meant to vindicate parents' rights to control the upbringing of their children, not students' rights. The court struck down a provision requiring students to stand even if they have permission to not recite the pledge, but it upheld the parental-permission requirement. The full 11th Circuit declined to rehear the case over the lone dissent of Judge Rosemary Barkett, who said "students possess basic rights of belief and expression under the First Amendment independent of their parents." In an appeal to the justices on behalf of Frazier, the ACLU says the ruling runs smack up against the Supreme Court's 1943 decision in West Virginia State Board of Education v. Barnette, which recognized a right of conscience that barred schools from compelling students to recite the pledge. The appeal in Frazier v. Smith (Case No. 08-1351) is on the high court's list for its Sept. 29 private conference, when the justices will discuss appeals that have piled up over the summer. Confederate Symbols Also pending on the Sept. 29 conference list is an appeal on behalf of three Tennessee students who challenge their school district's prohibition of displays of the Confederate flag. A panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled last year in favor of the Blount County, Tenn., school district and administrators in a challenge to the prohibition by students who say they wish to express their Southern heritage by wearing clothing depicting the Confederate flag. The appeals court pointed to facts in the record about several racial incidents at William Blount High School, including an alleged physical altercation between black and white students at a basketball game in 2005, and several incidents of racist graffiti found in a boys' restroom, including one depicting a noose. Lawyers for the students who challenged the district argued there was no evidence that Confederate flag symbols had caused disruptions at the school. Their appeal is Barr v. LaFon (No. 08-1325). Book Challenge A controversy over a children's book called ¡Vamos a Cuba!, or A Visit to Cuba, is the basis of another appeal brought to the Supreme Court by the American Civil Liberties Union of Florida. A panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, ruled 2-1 in February that the Miami-Dade County, Fla., school board did not violate the First Amendment when it removed the Cuba book from the shelves of school libraries. As I noted in this post about the appeals court decision, the majority and dissenting opinions total 177 pages in the case about a book for 4- to 8-year-old readers that is only 26 sentences long. In 2006, a Miami-Dade father objected to the presence of the book in his daughter's elementary school because of inaccuracies and because the book's descriptions about daily life, such as that "people in Cuba eat, work, and go to school like you do," ignored the realities of the Communist regime under leader Fidel Castro. The Miami-Dade school board's 6-3 decision to remove the book was struck down by a federal district court but upheld by the 11th Circuit court panel, which said "overwrought rhetoric about book banning has no place here." The appeal to the Supreme Court in American Civil Liberties Union of Florida v. Miami-Dade County School Board (No. 08-1564) raises questions about whether the appeals court failed to show proper deference to the district court's factual findings. The appeal was originally on the court's Sept. 29 conference list, but the court has requested a response from the Miami-Dade County School Board, which initially declined to file any brief in the case. Religious Message at Graduation In the latest in a series of controversies over high school graduation ceremonies, a student who was disciplined for offering a testimonial to Jesus Christ at her commencement is asking the Supreme Court to review her case. Erica Corder was one of 15 co-valedictorians at Lewis-Palmer High School in Colorado in 2006, and each was allowed to offer a 30-second valedictory message, according to court papers. Corder used her time for a testimonial to Jesus, after which her principal withheld her diploma and said she would not receive it unless she offered a public apology. She did so, and her apology was distributed via e-mail to her school community. But she filed a lawsuit alleging that her First Amendment free speech and free exercise of religion rights were violated. Both a federal district court and the U.S. Court of Appeals for the 10th Circuit, in Denver, ruled for the Lewis-Palmer School District and other defendants. The 10th Circuit panel held in May that the valedictory speeches were under the control of the district and school officials could exercise editorial control over them. The Supreme Court requested a response to the appeal in Corder v. Lewis Palmer School District (No. 09-257) after the district initially declined to file a brief. ]]> tag:blogs.edweek.org,2009:/edweek/school_law//55.10503 2009-09-23T02:36:37Z 2009-09-23T02:45:51Z

OK, comments, yes, but not that many letters. But below is a link to a letter published in Education Week responding to a recent post of mine about the case of Debbie Almontaser, who lost her job as a New...

Mark Walsh http://blogs.edweek.org/edweek/school_law/ here, and my Sept. 7 post is here.]]> tag:blogs.edweek.org,2009:/edweek/school_law//55.10399 2009-09-17T17:33:36Z 2009-09-17T17:29:41Z

A ruling by a California court raises questions about how schools handle student harassment, as well as the use of arbitration for disputes at private schools.

Mark Walsh http://blogs.edweek.org/edweek/school_law/ D.C. v. Harvard-Westlake School, the Los Angeles-based state appellate panel ruled 2-1 that the school could not recover the arbitration-related fees. The court said it was bound by an earlier appellate ruling that went against the family's basic claims under state law. But it held that a losing plaintiff bringing a complaint under California's hate-crimes statutes could not be forced to pay the defendant's attorneys' and arbitration fees. "The possibility of an award of attorney fees against the plaintiff in a hate crimes case would discourage such litigation," the appellate court said. Such hate-crimes claims did not merit case-by-case analysis as to whether a prevailing defendant, such as the school, could recover its fees under arbitration, the court said. "This case involves death threats motivated by a statutorily protected personal characteristic; it is not a vehicle-leasing transaction or a business arrangement gone awry," the court said. While this ruling is a matter of California law, it does make me wonder how many private schools across the country have mandatory arbitration clauses in their enrollment contracts. ]]> tag:blogs.edweek.org,2009:/edweek/school_law//55.10335 2009-09-10T12:35:37Z 2009-09-10T12:31:37Z

A school district did not violate students' rights when it barred the wind ensemble from performing "Ave Maria" at a high school graduation ceremony, a court ruled.

Mark Walsh http://blogs.edweek.org/edweek/school_law/ Nurre v. Whitehead. "District administrators recognized the evident religious nature of 'Ave Maria' and took into consideration the compulsory nature of a graduation ceremony." Judge Milan D. Smith Jr., in his partial dissent, said the ruling could lead public schools to eliminate music "with any trace of religious inspiration" from its programs. "The taking of such unnecessary measures by school administrators," Judge Smith said, "will only foster the increasingly sterile and hypersensitive way in which students may express themselves in such fora, and hasten the retrogression of our young into a nation of Philistines, who have little or no understanding of our civic and cultural heritage." ]]>