A three-judge panel of the Arizona Court of Appeals in Tucson ruled unanimously that the programs violate a provision of the state constitution prohibiting taxpayer aid to any church or "private or sectarian school."

"Our legislature apparently intended to foreclose the argument that the school voucher programs give unconstitutional aid to private schools by including statutory language ... stating that the public funds are a 'grant of aid to a qualifying pupil through the qualifying pupil’s respective custodian and not to the grant school in which the qualifying pupil is enrolled,'" the court said in Cain v. Horne.

Under the programs, state aid is sent to participating private schools in the form of checks that must be endorsed over to the schools by the parents or guardians who choose the school for their children. Education Week reported on the enactment of the measures here.

"Even if the mechanism for disbursing tuition payments were more circuitous, it would still transfer state-appropriated funds to private schools," the court said.

The coalition that challenged the laws, which includes the Arizona School Boards Association and the Arizona Education Association, has this press release about the ruling.

The laws were defended by Arizona Superintendent of Public Instruction Tom Horne. There was no immediate reaction to the ruling on his Web site.

The Arizona Republic has this brief story suggesting that the ruling will be appealed to the Arizona Supreme Court.

Late last month, a federal district judge in Connecticut issued an opinion in Connecticut v. Spellings dismissing the remaining claims in the state's suit. I reported on that in the blog here, and in an Edweek story here.

The Connecticut attorney general's office has this press release on the appeal, and the Hartford Courant has this story. The attorney general's press office says the filings are along the lines of a notice of appeal to the U.S. Court of Appeals for the 2nd Circuit, in New York City, and they don't include the state's substantive arguments about the issues in the case. I'll be on the lookout for that when it is filed.

Thanks to How Appealing for the tip.

A student identified in court papers as A.B. was charged with harassment for the messages aimed at Shawn Gobert, her principal at Greencastle Middle School in Greencastle, Ind., including one that said "die ... Gobert ... die." In an apparent dispute over body piercings during the 2005-06 school year, the student contributed one vulgar tirade to a MySpace page that was purportedly the principal's, but had been set up by another student, according to court papers. And A.B. herself created a MySpace "group" with a vulgar title that included the principal's name.

While a state trial court found A.B. delinquent on several harassment charges, a state appeals court reversed, ruling that the student's speech was protected by the First Amendment.

In a May 13 decision, the Indiana Supreme Court also ruled for the student, but on different grounds. In a unanimous opinion, the court said the student's message on the fake principal's page was not truly directed at Gobert because he was not among the MySpace subscribers authorized to view it.

As for the vulgar MySpace group created by A.B., the court said that the group page was accessible to the general public, and there was a reasonable expectation that it would come to the principal's attention. But under Indiana's harassment statute, a person breaks the law only by communicating a message with "the intent to harass, annoy, or alarm another person but with no intent of legitimate communication."

"The content of the posting presents strong evidence that A.B. intended her 'group' page as legitimate communication of her anger and criticism of the disciplinary action of Mr. Gobert and the Greencastle Middle School against her friend, the creator of the private 'profile,' " the court said. "We also observe that it is even more plausible that A.B., then 14 years old, merely intended to amuse and gain approval or notoriety from her friends, and/or to generally vent anger for her personal grievances."

U.S. District Judge Richard Smoak of Panama City, Fla., issued an oral ruling after a two-day trial in the lawsuit brought by Heather Gillman, a straight student at Ponce de Leon High School who says she was barred from displaying rainbow stickers and phrases such as "Gay Pride" and "I Support My Gay Friends."

The suit, backed by the American Civil Liberties Union of Florida, alleged that the Holmes County school district in Florida's Panhandle prohibited all symbols and slogans related to gay rights, "contending without a reasonable basis that such expression is disruptive to the educational process and indicative of membership in a 'secret society' or 'illegal organization.'"

The judge found that district officials violated Gillman's First Amendment free speech rights, and he permanently enjoined them from "restraining, prohibiting or suppressing the plaintiff or any other student within the Holmes County school district from expressing their support for the respect, equal treatment and fair acceptance of homosexuals," according to a very rough court transcript made available by the ACLU.

"I find that the core message here is that of tolerance and fairness, and that the issue of sexual preference is really not the thrust of the argument," Judge Smoak said.

The judge indicated that a written ruling would be forthcoming within a few weeks.

Gillman's lawsuit is here. An ACLU press release is here.

A panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled 2-1 to uphold the uniform policy of the Clark County, Nev., school district, which includes Las Vegas.

"In a case of first impression in this circuit, we ... largely conclude that public school mandatory dress policies survive constitutional scrutiny," said the majority opinion by Judge Michael Daly Hawkins in Jacobs v. Clark County School District.

The case involves a 2003 policy that set a basic dress code for all schools and then allowed individual schools to establish more stringent school uniform policies when parents returned surveys supporting the idea. A typical school uniform policy required khaki pants and solid-color polo shirts or other shirts with no messages except a school logo.

The policy was challenged on behalf of several students, including those who were forbidden from wearing religious messages as well as those who generally objected to having to wear a uniform.

The 9th Circuit majority said the school uniform policies were viewpoint- and content-neutral, and under a standard of intermediate scrutiny under the First Amendment, the policies further government interests such as promoting safety and enhancing the school environment.

The majority also cites with approval the Manual on School Uniforms put out by the U.S. Department of Education in 1996, under President Clinton. That manual appears to be archived on the department's Web site.

Writing in dissent, U.S. Circuit Judge Sidney R. Thomas said the majority had failed to properly apply the U.S. Supreme Court's decision in Tinker v. Des Moines School District, the 1969 case upholding the right of students to wear black armbands to protest the Vietnam War as long as school was not substantially disrupted.

Noting that the uniform policies prohibit "all messages on clothing, except for messages that support the school," Judge Thomas added: "Confining messages to pro-government content cannot be said to be viewpoint- or content-neutral."

The court's refusal without comment to hear the appeal in Evans v. Jenkins (Case No. 07-1210) means that the parent's suit will go forward on a First Amendment retaliation claim.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, had ruled unanimously in January to reinstate the First Amendment claim brought by Shara Jenkins against Lloyd Evans, the superintendent of the Rock Hill school district, and the district itself. The court said that the parent may have a valid claim that the superintendent retaliated against her for public criticisms that were protected by the First Amendment. The appeals court upheld the dismissal of certain other claims in the suit.

I blogged about the 6th Circuit ruling here. As I said at the time, the case stems from what appears to have been a nasty spat between the parent and the district over such things as whether the school nurse would administer the student's insulin shots and whether the superintendent tried to bar the student from returning to her school.

In an appeal of the 6th Circuit decision brought only by the superintendent, lawyers for Evans sought to convince the justices that there was a split among the federal circuit courts over whether a parent's criticism of public school officials must be on a matter of public concern for it to be considered speech protected by the First Amendment.

The Supreme Court's refusal to hear the appeal is not a decision on the merits of any part of the case, but it does mean the parent will be able to pursue the First Amendment claim at the trial court level.

A federal appeals court has upheld the dismissal of a Texas man's lawsuit alleging that a school district wrongly refused to hire him despite his 13 felony convictions.

The applicant, James J. Crook, was a lawyer who was convicted of barratry, which my legal dictionary defines as the crime of instigating groundless judicial proceedings. After losing his license to practice law, Crook got a job as a substitute teacher in the El Paso, Texas, school district, according to court papers. His suit said he applied multiple times for a permanent position as a social studies teacher, based in part on "representations" from an administrator that his felony convictions were not a bar to permanent employment.

After three years of not getting hired, Crook filed a challenge with the federal Equal Opportunity Commission, and later a federal lawsuit alleging various claims, including fraud based on the alleged misrepresentation and a claim that convicted felons should be a protected class under the Civil Rights Act of 1964.

In a unanimous decision by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, the court upheld the school district's policy of barring all felony convicts from teaching positions. The appeals panel agreed with the district court's conclusion that "because teachers are in close proximity to school children on a daily basis, and are charged with the responsibility of representing to their students an example of good moral character, the school board’s policy reflects the legitimate interest of protecting children from both physical harm and corrupt influences."

The court's decision in Crook v. El Paso Independent School District is here.

IDEA Expert Witnesses: Over at her On Special Education blog, my Education Week colleague Christina A. Samuels has this report on the IDEA Fairness Restoration Act, a bill introduced in Congress that is designed to reverse the U.S. Supreme Court's ruling in Arlington Central School District v. Murphy. The bill would amend the Individuals with Disabilities Education Act to allow the prevailing party in an IDEA suit to recover the costs of expert witnesses.

Indiana School Finance: Over at the Edjurist Accord, Justin Bathon reports on a ruling by an Indiana state appellate court that will permit a challenge to the state's funding system to go forward. The court's ruling is here.

Nebraska School Consolidation: What happens when a state passes a law requiring the consolidation of certain school districts, and a ballot initiative later passes that repeals the law, but not before a state committee carries out the first phase of the consolidations? As you might guess, litigation ensues. A decision last week by the U.S. Court of Appeals for the 8th Circuit, in St. Louis, concludes that voters who challenged that first round of consolidations on various grounds don't have a case.

The campaign put out this press release, as well as the text of his remarks. He says that if given the opportunity, he will appoint U.S. Supreme Court justices in the mold of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

McCain cited cases in which he thinks courts have run amok by imposing the judges' personal philosophies, or have failed to properly apply the U.S. Constitution. The only school case in that litany involved the challenge a few years ago to the words "under God" in the Pledge of Allegiance pressed by California atheist Michael Newdow. (Although McCain didn't cite him by name:)

Then there was the case of the man in California who filed a suit against the entire United States Congress, which I guess made me a defendant too. This man insisted that the words "Under God" in the Pledge of Allegiance violated his rights under the establishment clause of the First Amendment. The Ninth Circuit court agreed, as it usually does when litigious people seek to rid our country of any trace of religious devotion. With an air of finality, the court declared that any further references to the Almighty in our Pledge were -- and I quote -- "impermissible." And it was so ordered -- generations of pious, unoffending custom supposedly overturned by one decree out of a courtroom in San Francisco. And now it turns out the same litigant is back for more in the Ninth Circuit, this time demanding that the words "In God We Trust" be forever removed from our currency. I have a feeling this fellow will get wind of my remarks today -- and we're all in for trouble when he hears that we met in a chapel.

At least according to the prepared text, McCain didn't mention that the Supreme Court threw out the ruling by the U.S. Court of Appeals for the 9th Circuit against the inclusion of "under God" in the Pledge. The high court, in Elk Grove Unified School District v. Newdow, held that Newdow lacked standing to bring the challenge on behalf of his daughter. Education Week reported on that decision here.

Newdow is pressing a new suit against "under God" in the Pledge, which Edweek reported on here.

(This is being cross-posted at Education Week's Campaign K-12 blog.)

The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, announced that the entire 14-member court would rehear the case of Pontiac School District v. Spellings. The court's brief order is here.

The rehearing was sought by Bush administration lawyers on behalf of Secretary of Education Margaret Spellings after a three-judge panel of the 6th Circuit ruled on Jan. 7 that the states were not on clear notice of their financial obligations when they agreed to accept federal money under the NCLB law. (See Education Week, Jan. 16 and Feb. 13, 2008.)

The administration’s request for rehearing had said that the ruling had “immediate and irreparable” ramifications. Last week’s action by the full 6th Circuit has the effect of setting aside the panel’s opinion. No date was set for the rehearing, but one source indicated that oral arguments may not take place until September.

The request for rehearing had been opposed by the National Education Association, which organized the legal challenge of the NCLB law on behalf of some of its state affiliates and nine school districts in Michigan, Texas, and Vermont.

The 6th Circuit court’s action came the same week that a federal district judge dismissed the state of Connecticut’s lawsuit against Secretary Spellings over NCLB funding issues. See my blog post on that decision.

Education Week reported on the 6th Circuit panel's decision here, and on the Bush administration's request for rehearing here.

A three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled in Students for Sensible Drug Policy Foundation v. Spellings that the controversial sanctions do not violate the double-jeopardy clause of the 5th Amendment.

The student group argued that the primary purpose of the law is deterrence of criminal action, so the secondary sanction on those convicted of drug crimes is form of double jeopardy.

But the court noted that, under the law, a student may restore his or her eligibility for federal student aid by completing a drug-rehabilitation program.

"And the section was enacted as part of the Higher Education Amendments of 1998, which were primarily designed to increase access to college and make it more affordable," the court said.

Education Week reported in this 2001 story that the Bush administration was taking a strict approach to the law, requiring all applicants for federal student aid to answer a question on aid forms about whether they have ever been convicted of the covered drug offenses.

U.S. District Judge Mark R. Kravitz of New Haven, Conn., issued a decision Monday rejecting the last of the state's claims. The judge had dismissed other claims in the suit in 2006.

Judge Kravitz turned away Connecticut's efforts to have the federal court overturn Secretary Spellings' administrative decision turning down the state's request seeking greater flexibility in testing students in special education and English-language learners under the law. The judge said the secretary's actions were not arbitrary or capricious.

On a key issue that has been raised in another legal challenge to the NCLB law, Judge Kravitz declined to rule on the state's arguments that the secretary was enforcing the federal education law in a way that violates a provision of the law that bars the federal government from imposing "unfunded mandates" on the states.

"The court has no doubt that the very important issue of the proper interpretation of the unfunded-mandates provision is not before this court," Judge Kravitz said in his opinion, because Connecticut had not properly raised the issue during the secretarys' review of its NCLB plan.

"Though Connecticut provided estimates of what it would cost to modify and implement assessment policies and accommodations for LEP students and to develop alternate assessments for students with disabilities, nowhere did it state that the federal funding was insufficient to cover those costs," the judge said. "Instead, the State sought to justify its requests on the basis of reasons other than cost."

The judge said the state is free to raise the unfunded-mandates issue in the next round of administrative decisions before the secretary. That would put off any legal decision on the issue for many months, if not years.

My Education Week colleague David Hoff writes about the ruling here in his NCLB: Act II blog, including a statement from the U.S. Department of Education that the decision is a "resounding victory for children and families."

The Associated Press reports on the ruling here. This updated AP story on the site of the Hartford Courant quotes a statement by Connecticut Attorney General Richard Blumenthal that he intends to appeal the decision.

The other big NCLB ruling I alluded to above was the Jan. 7. decision by the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, that the states were not on clear notice of their financial obligations when they agreed to accept federal funds under the law. Secretary Spellings' request seeking a rehearing before the full 6th Circuit court is pending.

Education Week reported on the 6th Circuit decision here, and in this story that discussed the possible impact on the Connecticut case.

In Her Majesty the Queen v. A.M. , the nation's top court upheld two lower courts that had thrown out drug-possession charges of a student whose backpack had been searched after a police dog alerted to it and the police found marijuana and mushrooms. The principal of St. Patrick School in Sarnia, Ontario, had invited police to conduct the warrantless search. Students were kept in their classrooms while the dog sniffed their backpacks.

The majority on the Supreme Court held that the sniffer-dog search of the backpack violated Section 8 of the Canadian Charter of Rights and Freedoms, which says, "Everyone has the right to be secure against unreasonable search or seizure."

"Teenagers may have little expectation of privacy from the searching eyes and fingers of their parents, but they expect the contents of their backpacks not to be open to the random and speculative scrutiny of the police," said a plurality opinion by Justice William Ian Binnie.

The Globe and Mail newspaper reports here, CBC News reports here, and Bloomberg News reports here. (Thanks to How Appealing for the tip.)

A couple of years ago, my Education Week colleague Andrew Trotter reported that more U.S. school districts were using drug-detection dogs. A visit to a school in Oklahoma City showed that "campus searches typically cover parking lots, student lockers, and school common areas, such as the cafeteria. The dogs do not sniff students directly."

The U.S. Supreme Court has never ruled directly on the use of drug-searching dogs in schools.

Equal Access Act: A federal appeals court ruled today that a Washington state school district did not violate the federal Equal Access Act or the First Amendment by denying recognition to a student Bible club because the club's charter conflicted with the district's non-discrimination policy.
However, because there were questions about whether the district violated the group's rights by refusing to exempt it from the policy based either on its religion or the content of its speech, the court reversed a summary judgment order in favor of the school district and ordered further proceedings.
The ruling by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, in Truth v. Kent School District is here.
The case involves a proposed student Bible group called Truth at Kentridge High School, and the core controversy is over the club's interest in limiting full voting membership in the club to students who pledge to abide "in good faith with Christian character, Christian speech, Christian behavior and Christian conduct as generally described in the Bible.”

Unitary Status in Tucson: "A federal judge essentially has released the Tucson Unified School District from a 30-year-old desegregation order," the Associated Press reports here. The opinion by U.S. District Judge David C. Bury is here.
The Tucson Citizen reports here that "much of the desegregation order, however, lost its bite in August, when Bury ruled TUSD's student assignment policy unconstitutional."
The judge's August order is here.

Connecticut School Funding: The Connecticut Supreme Court this week considered a lawsuit challenging the way the state funds public education. The Connecticut Coalition for Justice in Education Funding has a Web page devoted to its case, which is seeking to overturn a lower-court ruling that the state constitution does not mandate a minimum standard of quality for public education.
The Hartford Courant reports here.
Yale Law School has this press release about how two students in its Education Adequacy Clinic got to argue the case before the state high court justices.

A three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, unanimously rejected arguments from the Indian Prairie school district in suburban Chicago that it should be able to bar a student from wearing the shirt on the school day after the Day of Silence because it would be derogatory and offensive to some students.

" 'Be Happy, Not Gay' is only tepidly negative; 'derogatory' or 'demeaning' seems too strong a characterization," U.S. Circuit Judge Richard A. Posner said in the opinion for the court in Nuxoll v. Indian Prairie School District No. 204. "As one would expect in a school the size of Neuqua Valley High School, there have been incidents of harassment of homosexual students. But it is highly speculative that allowing the plaintiff to wear a T-shirt that says 'Be Happy, Not Gay' would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere."

"Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the exercise of a student’s free speech," the judge added .

I wrote this story in this week's Education Week discussing the Day of Silence and some of the legal issues that have arisen out of it, including the Illinois case. I have a related blog post here.

The Day of Silence is scheduled for this Friday, April 25. The Day of Truth, an alternative event sponsored by the Alliance Defense Fund, which is when Illinois student Alexander Nuxoll wants to wear his "Be Happy, Not Gay" shirt, is scheduled for Monday, April 28.

UPDATE: My longer Education Week story on the ruling is now available here.