SUBSTANTIAL DISRUPTION GIVES SCHOOLS POWER TO CONTROL OUT OF SCHOOL SPEECH

The Third Circuit Court of Appeals has now ruled in two cases I discussed in a previous blog entry about disciplining students in school for out of school speech. Both cases, Layshock v. Hermitage School District and J.S. v. Blue Mountain School District involved students who created fake MySpace profiles of their school principals outside of school that contained false and, at the very least, suggestive information about the principals. However, in one case the Court found disciplining the student was allowed, but in the other it violated the student’s First Amendment rights. The Court focused in both cases on the issue of substantial disruption in the school setting or the potential for the same. 

In Laystock, the Court found it particularly concerning that a school should be able to discipline a student for speech that occurs outside of the school setting, and found no evidence in the case to establish that there had been a substantial disruption in the school setting as a result of the profile. Interestingly, it is not suggested in the opinion that the school believed a substantial disruption was likely to occur if it failed to act.  The Court found that the school could not discipline as there was no substantial disruption.

 

In J.S., the information contained in the profile was more vulgar than in Laystock and there was testimony that there was “a severe deterioration in discipline” in the school. The Court notes that the actual disruption was not sufficient itself to justify the discipline, but rather the immediate effect the profile had in the school setting and that a substantial disruption was reasonably foreseeable if the school did not act based upon what had been seen to date did. Accordingly, the Court found that discipline was permitted.   

 

Thus, it appears that discipline may be given for out of school speech if that speech causes a substantial disruption in the school setting or if school officials can explain what they saw was happening and show that if they failed to act, there would likely be a substantial disruption.    

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.