What's the Rule on Cyber-Bullying? Who knows.

Well, it's official. There is still no single rule on schools disciplining students who post things on the internet from home that would break school rules if done when under the jurisdiction of the school.  This week the U.S. Supreme Court decided not to hear appeals from Pennsylvania or West Virginia, letting stand the prior decisions of the Third and Fourth Circuits.  Unfortunately, it appears that those circuit court decisions came to opposite conclusions on the issue, and even in the Third Circuit the two cases do not give us a very clear rule.

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Failed Cheerleader Does Not Make Squad, Sues

Thanks to Aaron Weems of Fox Rothschild's litigation (family law) division for noticing this item detailed in the Dallas Observer's blog. In truth, even though it is from the 5th Circuit, it is quite a good discussion of foundational requirements to prove student on student Sexual Harassment in school.  The cases it cites are almost exclusively from the U.S. Supreme Court rather than 5th Circuit matters.

So what was the case about? To quote Circuit Judge Smith:

[r]educed to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.

Hear, hear! You tell them Judge Smith!

The case, Sanches v. Carrollton-Farmers Branch Independent School District, can be read in full here.

Supreme Court Holds that First Amendment Right to Petition Government only Applies to Matter of Public Concern for Government Employees

The Supreme Court has held that in order for the actions of a public employee to qualify for protection under the First Amendment’s Petition Clause, it must relate to a public concern. In the case of Borough of Duryea v. Guarniere, the Court ruled that the action of filing a union grievance related to a police chief’s alleged improper termination and changes in duties was not a protected activity and, thus, actions taken by the employer in response to the was not retaliation for exercising First Amendment rights.

The Court explained that government employees can act as citizens and, when discussing public concerns, could engage in petitioning the government and that such actions would be protected under the First Amendment. However, when an employee’s complaint relates to the employee’s own duties, that is not a matter of public concern and, thus, not protected. As the Court explained, “The right of a public employee under the Petition Clause is a right to participate as a citizen through petitioning activity, in the democratic process. It is not a right to transfer everyday employment disputes into matters for constitutional litigation in the federal courts.”


The Court explained in determining whether a particular activity was of public or private concern, the whole record regarding the content, form and context of the petition needed to be reviewed and the forum in which it was raised needed to be considered.   

A January Reminder About Religion In School

It is January.  From the kids' point of view, they are back to school after an all too brief  winter recess.  From the point of view of administrators and the attorneys representing them, it is the end of another season fielding questions about religion in schools.  We now have another 10 or even 11 months before it will all come around again.

In the meantime, to remind us of the season just past, the Federal District Court in Delaware (part of the Third Circuit along with Pennsylvania, New Jersey and the Virgin Islands) just issued an opinion concerning a district where a public elementary school teacher was reading Christmas stories to her kids every day in December.   The court there did not say it was too religious, but it refused to say it was not, either.

This was an interim decision simply to determine which issues had sufficient legal support to go to trial, so this case is not over.  But for those of us standing on the sidelines watching, the decision gave a nice but brief review of some of the law related to the 1st Amendment Establishment clause provision of the U.S. Constitution.

As a guideline, school administrators and teachers should remember to ensure that all displays and activities should have at least some secular purpose, should not have a primary effect of advancing or inhibiting religion, and finally, it should not "foster[s] an excessive government entanglement with religion," (the "entanglement" portion of the above, "requires more than mere interaction between church and state, for some level of interaction has always been tolerated"). 

Also, before a member of the general public complains, that person should also stand back and examine the offending display or activity as a "reasonable observer" who is "familiar with the history and context" of such displays or activities would see it.  If that reasonable person would not see it as an "endorsement of religion" then the courts likely will not take any action and the member of the public should not, either.

The federal case in the District Court of Delaware was Jane Doe v. Cape Henlopen School District, 2011 WL 64073 (D.Del.), but the cited language above is from the Third Circuit cases Stratechuk v. Bd. of Educ., S. Orange-Maplewood Sch. Dist., 587 F.3d 597 (3d Cir.2009), and Child Evangelism Fellowship of N.J. Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 534 (3d Cir.2004).


In a case out of the Northern District of California, Sheldon v. Dhillon (N.D.Cal. Nov. 25, 2009), a court has held that teachers may enjoy First Amendment Protections for things they say in class. In Sheldon, a community college teacher alleged that she was terminated from her employment as a result of an in class discussion regarding heredity and homosexual behavior. While there was significant dispute over what was actually said during the class discussion, the court found that the teacher had First Amendment protections for her speech and cited to several other court decisions that held likewise, including decisions involving both college level and school age level teachers. However, the court cautioned that an employer could discipline an employee, despite any First Amendment concerns, if they could show that the discipline was “reasonably related to legitimate pedagogical concerns.” The lesson seems to be that a teacher’s speech in the classroom is protected, but if teachers start saying things that might be clearly inaccurate or outside the scope of instructional speech, an employer may be able to discipline and that determination may be very fact specific.  

Religion in Public Schools - A Review of Some Recent Cases

This summer has seen several opinions from around the country on the issue of religion in public schools.  Here is a brief synopsis of several cases.


In the case of Roark v. South Iron R-1 School District, the Eight Circuit Court of Appeals upheld in part a decision that barred a school district in Missouri from allowing representatives of Gideons International from distributing Bibles to fifth graders during the school day, a thirty year old tradition.  While decision to end the practice is certainly not shocking, the decision does offer some insight to school districts that are faced with a situation of having old traditions that need change.  In light of the lawsuit about the Bibles, the local school district adopted a new policy related to the distribution of literature in its schools, which was also challenged.  The District Court, seeing a tradition of Bible distribution, held the new policy was done for the purpose of promoting religion.  However, the Eight Circuit disagreed and stated that the new policy was facially neutral, applied to all groups that wished to distribute literature in the schools and had not yet been put into practice.  Thus, districts faced with attempting to adopt policies to change outdated practices can do so, if the policy is facially neutral, applies to all group and, when put into practice, is applied in a content neutral manner.


In Christian Legal Society v. Eck, it was held that a public law school may properly withhold funding from a religious group that prevents membership on the basis of religion and sexual orientation.  In Eck a public law school provided funds through a mandatory student activities fee, but had policies that required groups that accepted the funds must be open to all students and not discriminate on the basis of, among other things, religion and sexual orientation.  The Christian Legal Society required members affirm a statement of faith that would exclude non-Christians and homosexuals from membership.  The law school refused to provide the group funding, but did allow them access to school facilities and all other law school services that other groups had access to.  The Court upheld the decision of the law school finding the policy was neutral, both on its face and its application, and that the school allowed students in the group access to all other services available to other groups.  This case is another reminder that policies and practices must be neutral to the issue of religion to stand up in court.


In Corder v. Lewis Palmer School District No. 38, the Tenth Circuit Court of Appeals upheld the requirement by a school district that students speaking as valedictorians at graduation provide their speech to the administration for approval and could be disciplined if they sway from the submitted speech.  In this case, a student submitted her speech, but then deviated from it when the speech was given by inviting the audience to find out more about a relationship with Jesus Christ.  The student was required by the school to issue a public apology prior to receiving her diploma for any offense the statement may have caused for deviating from the speech she submitted. The Court reasoned that graduations are a school activity over which the school could exercise control and it had the ability to have more control over the activity, as opposed to speech not supported by the school.  With the analysis, it would be interesting to see if the student had simply yelled this statement out if the speech would be protected.  Nonetheless, the lesson for schools is that if you sponsor the activity, you are able to have more control over what is said. 


Finally, a little closer to home in Busch v. Marple Newtown School District, the Third Circuit Court of Appeals upheld the action of a school district which would not allow a parent to read scripture as part of a presentation to her child’s class.  The presentation was part of a week long project in which each student was the student of the week and one component was that the parent of that student was allowed to present something to the class.  The Court held that given the student was in kindergarten and the students in the class were required to be there, the presentation could appear to be an endorsement of religion.  In addition, because other parts of the project allowed the student to voice his religious views, for example he made a poster that included among other things a drawing of his church and the statement that he enjoyed going to church, the decision of the school was not based on discriminating against the parents’ religion.     


Teacher's Blog May Not Be Free Speech

In a case out of the Ninth Circuit Court of Appeals, Richerson v. Beckon it was found that a teacher's blog entries were not protected speech and that the employee could be demoted for the same. In Richerson, a teacher was assigned to a position in which she served a mentor to others and was to provide less experienced teachers "honest, critical, and private feedback."  The teacher maintained a blog in which she made "several highly personal and vituperative" comments about her employers, union representatives, and fellow teachers.  While her blog did not identify these people, it was clear who they were from the description given in the blog.  The teacher was demoted and filed suit claiming violation of her right to free speech. 

The Court explained in the unpublished opinion that a public employee's speech, in order to be protected, must touch on a matter of public concern.  The Court further explained that the speech is not protected when (1) it disrupts co-worker relationships, (2) interfered with the speakers performance of her or his duties, and (3) eroded a close working relationship based upon personal loyalty and confidentiality.  Thus, the Court found this blog was not protected speech.

The case raises some interesting questions about other electronic postings, such as a Facebook or Twitter and whether those types of communications may also subject, under certain conditions, an employee to discipline. 


The United States Supreme Court finished out its term last week by refusing to hear two cases related to schools.

First, in the case of Truth v. Kent School District the Court was asked to rule on whether a school district could refuse to recognize a Christian club named "Truth."  The school refused to recognize the group on the basis that its name might be a concern and that members were required to sign a statement of Christian faith, which violated the district's non-discrimination policy.  The club filed suit claiming the action violated the Equal Access Act and the First Amendment, but two lower courts disagreed.  The Supreme Court declined to hear the appeal, which means the lower court decisions stand. 

Next, in the case of Winkelman v. Parma City School District, the Court refused to hear an appeal of parents who were seek tuition reimbursement and raised issues of whether or not a court may look beyond the four corners of an IEP to determine if it is appropriate.  The trial court looked beyond the IEP in its decision and denied tuition reimbursement, with the decision being upheld by the Sixth Circuit Court of Appeals.  This is the second time the Winkelman's attempted to go to the Supreme Court, the last time they were successful and the Court found that they could proceed without counsel and represent the student in Court.  This subsequent appeal was on the merits of the case.       


In Safford Unified School District #1 v. Redding  the Supreme Court was faced with a student who was suspected of having forbidden prescription and over the counter medications with her in the school setting. School officials searched her bag and outer clothing and asked her to remover her clothing down to her bra and underwear. At this point, the school officials asked her move her undergarments to expose her breasts and pelvic area, although she was not asked to remove the same. The Court was asked to determine if such a search was constitutional and the Court found it was not.

The Court begins by acknowledging that the standard required of school official who conduct searches is one of reasonableness that is short of probable cause. The Court found that the evidence established that the search of the student’s backpack and outer clothing was reasonable, but once the search moved past that point it no longer was. The Court was concerned with the fact that given the low level of threat even if the student had these medications and lack of evidence to show it was likely she did, the search was unreasonable and, thus, unconstitutional. While not setting a standard, the Court seems to leave open, at least in part, the option of a strip search under different circumstances involving a different level of evidence and a different threat to the school environment. It appears the Courts will have to iron out when, if ever, such a search might be reasonable.

Finally, the Court notes that several Courts have considered this issue and come to different conclusions. Thus, given the lack of clarity as to the protections afforded to the student, the Court finds that school officials may have reasonably believed they were acting in a manner consistent with protections of the Constitution and, thus, are entitled to qualified immunity for their actions. Thus, school officials who have conducted these types of searches in the past likely will have some level of immunity, but those who engaged in them in the future, given the Court’s guidance, will not.

The Court ends its term on Monday and there may be more news to come. 

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More confederate flag nonsense

Once again, it appears that some racial bigots attempted to cloak themselves and the confederate flag with First Amendment protection.  The courts did not let them.  Click here for the Eighth Circuit case.  Does anyone get the sad irony in all this?

ADA Amendments: retroactive application will find more disabled claimants

In a case of what may be the future, the U.S. Court of Appeals for the Sixth Circuit remanded a case for further consideration of the “broad” impact of the Americans With Disability Act Amendments.

In Jenkins v. National Board of Medical Examiners, the plaintiff, a third year medical student, sought and was denied extended time on the United States Medical Licensing Exam.  Prior to then, he had, since a young student, been identified with a reading disorder and received additional time. The trial court rejected his claim under the pre-amendment ADA.  During the appeal, the Amendments took effect and the appeals court reinstated the claim.

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Response To Comments, Fall 2008

Its time again to write about some comments. I wrote about the District of Columbia School Chancellor’s efforts to implement performance pay in “Teacher pay and tenure: creating a free agent market.”  Professor Fox added a comment regarding improvement to the current common rater method of assessing performance. I also wrote a piece about confederate flag waiving students (“Yet another confederate flag case”)” that garnered a response from Lynn accusing me of revisionist history and political correctness (me!). Craig wrote an interesting question in response to the entry “College-Student Disciplinary Contract Claims.”  Finally, in “Fourth Circuit Placement Decision Revisited: the last word,” I brought readers up to date on the case at issue and responded to a previous comment critical of my suggestion that open and honest communication can be a salve to the bad decision. Well, I got a comment from Nagla in support of my view!  Thanks for all your comments, even if I don't get to address each one.  Now to the four comments.

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Ability grouping: issues and concerns?

Recently, a reader wrote with a question and a situation.   

“I was looking at your website, and I was unable to find the answer to this question.  Is ability grouping allowed under Pennsylvania law?  In other words, a school has four classes for each grade level, and the students are grouped into four ability levels, from high achieving to low.  I've heard conflicting answers would like your insights.”

As readers know, I cannot give specific legal advice through this Blog.  But I can give my thoughts, generally (and welcome to hear yours), about this situation, so here goes. 

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Protect your right to the ADA religious exemption

Religiously-affiliated independent schools and colleges need to take certain steps to have the protection offered by the religious exemption in the Americans With Disabilities Act, which states: “The provisions of this subchapter shall not apply to . . . religious organizations or entities controlled by religious organizations, including places of worship.” 42 U.S.C. § 12187. Whether an institution is entitled to the exemption is a factual question. A summary of factors is at the end of this entry.  

The Third Circuit “touched” on the issue of ADA’s religious exemption as applied to private schools in Doe v. Abington Friends School, 480 F.3d 252 (3d Cir. 2007). The plaintiffs claimed Abington Friends School (“AFS”) discriminated against their son, a student with disabilities (ADHD and learning disabled) attending the school. Among other things, the plaintiffs claimed AFS used improper discipline and failed to accommodate him.   Continue Reading...

The ADA's business necessity defense

The Ninth Circuit Court of Appeals, sitting en banc, in Bates v. United Parcel Service, Inc., re-visited the issue of the business necessity defense and an employer’s safety-based qualification requirements. The court ruled that a government safety rule that does not apply directly to the job at issue but is nonetheless related to the job’s requirements can be considered when determining whether the employer’s safety requirement is proper or discriminatory. 

In this case, UPS had a rule that required all package car drivers to meet a U.S. Department of Transportation (“DOT”) hearing standard. The DOT standard, however, applied only to drivers of trucks over 10,000 pounds gross vehicle weight. UPS applied the rule to all drivers, a rule that was discriminatory on its face.

A class of hearing impaired potential drivers challenged the rule. The trial court found for the plaintiffs, but the Court of Appeals, en banc, reversed and remanded for further proceedings in light of its “clarification” of the law.

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Advanced placement and disabled students: U.S. Department of Education guidance

In a December 26, 2007 "Dear Colleague" letter, the U.S. Department of Education addressed "an issue involving students with disabilities seeking enrollment in challenging academic programs, such as Advanced Placement and International Baccalaureate classes or programs (accelerated programs)."  The letter would be applicable to any covered entity.

Apparently, some schools refuse to allow qualified disabled students the right to participate in such programs or require the student’s to forego some other right. These actions, said the Department, "are inconsistent with Federal law, and the Office for Civil Rights (OCR) in the U.S. Department of Education will continue to act promptly to remedy such violations where they occur."

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Student transportation and constitutional rights

The case of Enright v. Springfield School District is a lesson in the important need for a quality program of training for bus drivers. The case resulted in a jury verdict upheld by the court against a school district and in favor of a seven year old student abused on a bus by older students. Liability against the school district was found because the school district did not train its driver and had policies and practices in place that made environment of the bus unsafe.

The school district owned and operated a bus that transported a 17-year old male student with emotional issues to an approved private school, a 14-year old male with learning disabilities to a private school, and a seven year old girl with Asperger’s syndrome to a private school. In short, the two boys engaged in sexualized conduct toward the girl that caused her significant trauma. Parents filed suit seeking relief via Section 1983 for violations of Section 504 of the Rehabilitation Act, the Americans With Disabilities Act, the IDEA, and Fourteenth Amendment due process rights.

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