© J. Patrick Mahon, Ph.D., 2001
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This publication is designed to provide accurate and authoritative information
in regard to the subject matter covered. It is sold with the understanding that
the publisher is not engaged in rendering legal, accounting or other
professional service. If legal advice or other expert assistance is required, the
services of a competent professional person should be sought.
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About the Author
J. Patrick Mahon, Ph.D. is a retired educator with 32 years of educational
experience. He served as a high school principal for 23 years. He has been
teaching School Law as a Part-Time Assistant Professor for the University of
Georgia in Gwinnett County, Georgia since June 1999. Previously, he taught
one semester of School Law for Georgia State University where he earned his
Ph.D. in Educational Leadership in 1976. His dissertation was entitled: The
Dismissal and Termination of Public Employees: a Statutory and Case Law
Analysis with Implications for Policy and Practice.
J. Patrick Mahon was a member of the Board of Directors of the National
Association of Secondary School Principals from 1994-98. He served on the
Executive Committee of the Board for the 1997-98 school year. Previously, he
served as the Secretary-Treasurer of the Georgia Association of Secondary
School Principals. He has published over 20 articles in professional journals
including the NASSP Bulletin, The Journal of Law and Education, The Illinois
School Board Journal, and Educational Leadership (ASCD)
Dr. Mahon’s email address is: [email protected]
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Table of Contents
Basic Legal Principles ..................................................................................9
Sources of Law ........................................................................................................... 9
The Courts ................................................................................................................ 10
Resources.................................................................................................................. 12
Internet Resources .............................................................................................. 12
Textbooks ................................................................................................................. 13
The Governance of Education.....................................................................13
Tenth Amendment..................................................................................................... 13
Education .................................................................................................................. 14
• Public Schools................................................................................................... 14
• Private Schools ................................................................................................. 14
• Charter Schools ................................................................................................ 15
Case Law ............................................................................................................. 15
Religion ......................................................................................................16
Prayer/Religious Activities in Schools....................................................................... 16
Services to Students .................................................................................................. 19
Students ......................................................................................................19
First Amendment....................................................................................................... 19
• Speech ............................................................................................................... 19
• Dress.................................................................................................................. 20
• Expression ........................................................................................................ 21
• Internet.............................................................................................................. 22
• Press .................................................................................................................. 22
Fourth Amendment – Search and Seizure .................................................................. 22
Eighth Amendment – Corporal Punishment............................................................... 23
Fourteenth Amendment ............................................................................................. 24
Due Process ..................................................................................................... 24
Equal Protection.............................................................................................. 25
Curriculum Issues...................................................................................................... 25
• Testing – High Stakes ...................................................................................... 25
• Evolution/creationism .................................................................................... 26
• Textbooks/Library “Books”............................................................................ 26
Miscellaneous ........................................................................................................... 27
• Immunization................................................................................................... 27
Teachers .....................................................................................................28
First Amendment....................................................................................................... 28
• Speech ............................................................................................................... 28
• Expression ........................................................................................................ 29
Fourteenth Amendment ............................................................................................. 29
• Due process ...................................................................................................... 29
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Desegregation .............................................................................................32
Fourteenth Amendment ............................................................................................. 32
Federal Statutes............................................................................................... 32
• Case Law........................................................................................................... 32
IDEA ..........................................................................................................33
IDEA Regulations ..................................................................................................... 33
• Significant Changes ................................................................................................ 34
• Case Law................................................................................................................ 35
School Finance ...........................................................................................36
•
•
•
•
•
•
•
•
San Antonio ISD v. Rodriguez ............................................................................... 36
Rose v. Council for Better Education ...................................................................... 36
DeRolph v. the State of Ohio................................................................................... 36
NJ Cases................................................................................................................ 36
Mueller v. Allen ..................................................................................................... 36
Strout v. Albanese .................................................................................................. 36
Simmons-Harris v. Goff.......................................................................................... 36
Bush v. Holmes....................................................................................................... 36
Educator Liability .......................................................................................37
Torts ......................................................................................................................... 37
• Wood v. Strickland ................................................................................................. 37
• Carey v. Piphus ...................................................................................................... 37
• Franklin v. Gwinnett County Schools..................................................................... 37
• Davis v. Monroe County Bd. of Educ. .................................................................... 37
Defamation ............................................................................................................... 38
o Deselle v. Guillory............................................................................................. 38
o N.Y. Times v. Sullivan ...................................................................................... 38
o Ellerbee v. Mills................................................................................................. 38
School Records and Privacy ...................................................................................... 39
o Fay v. South Colonie Central School Dist.......................................................... 39
Conclusion..................................................................................................40
Case Briefs
Abbott v. Burke ..........................................................................................42
Abington School Dist. v. Schempp .............................................................43
(Murray v. Curlett)......................................................................................43
Adler v. Duvall County...............................................................................44
Agostini v. Felton .......................................................................................45
Allen v. Casper ...........................................................................................46
Barcheski v. Bd. Of Educ. of Grand Rapids Public Schools........................47
Beeson v. Kiowa County School Dist. RE-1 ...............................................48
Berg v. Glen Cove City School Dist. ..........................................................49
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Bethel School Dist. No. 403 v. Fraser .........................................................50
Bd. of Educ. of Westside Community Schools v. Mergens .........................51
Bd. of Education, Island Trees Union Free School Dist. No. 26 v. Pico ......52
Bd. of Regents of State Colleges v. Roth ....................................................54
Boroff v. Van Wert City Bd. of Educ..........................................................55
Bown v. Gwinnett County School Dist. ......................................................56
Brown v. Bd. of Educ. of Topeka................................................................57
Canady v. Bossier Parish School Bd. ..........................................................59
Carey v. Piphus...........................................................................................60
Castorina v. Madison County School Board ...............................................61
Cedar Rapids Community School Dist. v. Garret F. ....................................62
Chandler v. McMinnville School Dist.........................................................63
Chandler v. Siegelman................................................................................64
Cleveland Bd. Of Educ. v. LaFleur .............................................................66
Columbus Bd. of Educ. v. Penick ...............................................................67
Davis v. DeKalb County School District.....................................................69
Davis v. Monroe County Bd. Of Educ. .......................................................70
Debra P. v. Turlington ................................................................................71
DeRolph v. the State of Ohio ......................................................................73
Deselle v. Guillory......................................................................................74
East Hartford Educ. Assn. v. Bd. of Educ. of the Town of East Hartford ....75
Eckmann v. Bd. Of Educ. Of Hawthorne School Dist. No. 17 ....................76
Edwards v. Aguilard ...................................................................................77
Ellerbee v. Mills .........................................................................................78
Engel v. Vitale ............................................................................................78
Epperson v. Arkansas .................................................................................79
Erb v. Iowa State Bd. of Public Instruction .................................................81
Everson v. Bd. of Educ. of Ewing Tp..........................................................81
Falvo v. Owasso ISD No. I-011 ..................................................................83
Fay v. South Colonie Central School Dist. ..................................................84
Floyd v. Waiters .........................................................................................85
Fowler v. Bd. of Educ. of Lincoln County, Kentucky .................................86
Franklin v. Gwinnett County Public Schools ..............................................87
Freeman v. Pitts ..........................................................................................88
Gaylord v. Tacoma School Dist. No. 10......................................................89
Gebser v. Lago Vista ISD ...........................................................................90
Geller v. Markham......................................................................................92
GI Forum v. Texas Educ. Agency...............................................................93
Gillett v. Unified School Dist. No. 276 Jewell County................................95
Gonzales v. McEuen ...................................................................................96
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Good News Club et al v. Milford Central School........................................97
Goss v. Lopez .............................................................................................98
Green v. County School Bd of New Kent County.....................................100
Grube v. Bethlehem Area School Dist. .....................................................101
Hartzell v. Connell....................................................................................102
Hazelwood School Dist. v. Kuhlmeier ......................................................103
Hearn v. Bd. of Public Educ. ....................................................................104
Hendrick Hudson Dist. Bd. Of Educ. v. Rowley .......................................105
Hines v. Caston School Corp. ...................................................................106
Ingraham v. Wright...................................................................................108
In re Randy G. ..........................................................................................109
Jackson v. Benson.....................................................................................111
Kelley v. Johnson .....................................................................................112
Keyes v. School Dist. No. 1, Denver, Colo. ..............................................113
Lamb’s Chapel v. Center Moriches School Dist........................................114
Lee v. Weisman ........................................................................................115
Lemon v. Kurtzman ..................................................................................116
Marshall v. Kirkland .................................................................................117
McDaniel v. Thomas.................................................................................119
Meyer v. Nebraska....................................................................................120
Milliken v. Bradley...................................................................................121
Missouri v. Jenkins ...................................................................................122
Mitchell v. Helms .....................................................................................123
Mt. Healthy City School District Bd. of Educ. v. Doyle............................124
Mueller v. Allen .......................................................................................125
New Jersey v. TLO ...................................................................................126
N. Y. Times v. Sullivan ............................................................................127
Palmer v. Merluzzi....................................................................................128
Perry v. Sindermann .................................................................................129
Pickering v. Bd. of Educ. ..........................................................................130
Pierce v. Society of Sisters of the Holy Names of Jesus and Mary............132
Plessy v. Ferguson ....................................................................................133
Plyler v. Doe.............................................................................................134
Rose v. The Council for Better Education.................................................135
Bd. of Regents of State Colleges v. Roth ..................................................137
Sain v. Cedar Rapids Community School District.....................................138
San Antonio ISD v. Rodriguez..................................................................139
Santa Fe ISD v. Doe .................................................................................140
Seal v. Morgan..........................................................................................142
Sherman v. Community Consolidated School Dist. 21 of Wheeling Tp. ...143
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Strout v. Albanese.....................................................................................144
Swann v. Bd. Of Educ...............................................................................145
Thomas v. Atascadero USD ......................................................................147
Tinker v. Des Moines School Dist. ...........................................................147
Vernonia School Dist. 47J v. Acton ..........................................................149
Wallace v. Jaffree .....................................................................................150
West v. Derby Unified School Dist. No. 260 ............................................152
West Virginia State Bd. of Educ. v. Barnette ............................................153
Wilson v. Chancellor ................................................................................154
Wisconsin v. Yoder ..................................................................................156
Wood v. Strickland ...................................................................................157
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Basic Legal Principles
Sources of Law
• Introduction
Education is a function of the states under the Tenth Amendment.
The Tenth Amendment grants to the states the rights not reserved
to the federal government. Education is not a federal function.
Federal monies for education account for about 7% of the total
education budget in each state. It is important for educators to
understand this. The federal Constitution, federal court decisions,
and federal statutes along with administrative regulations always
supercede state laws, court decisions, and administrative
regulations. States cannot enact laws that are contrary to federal
Law.
• Constitutions – Federal and State
The U. S. Constitution which includes the Bill of Rights, the first ten
amendments, is the supreme law of the land. However, each state
also has a constitution and a bill of rights which specifies, among
other things, the provisions for education within that state.
• Statutes – Federal and State
The U.S. Congress passes laws which federal agencies use to
develop administrative regulations to implement the laws. We are
all familiar with IDEA which was reauthorized by Congress in
1997. The U. S. Department of Education then adopted
administrative regulations to implement the act. State constitutions
contain the provision for free and appropriate public education.
Educational provisions and rights may vary some from state to
state.
• Case Law – Federal and state
Federal and state courts in the United States issue opinions based
on real controversies. Our courts do not issue advisory opinions.
Our American system of justice is based on real, live controversies.
There has to be a real dispute before courts will adjudicate the
issue. Some state attorneys general are authorized to issue advisory
opinions which have the effect of law in that particular state.
• Administrative Regulations
The U. S. Department of Education and state school boards are
administrative agencies which propose and adopt administrative
regulations to implement statutes.
• Local school boards are quasi-executive, quasi-legislative, and
quasi-judicial bodies. The policies and regulations of local boards
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have the effect of law in local school systems. Boards and schools
are subject to Public Record Acts and Open Meeting (Sunshine)
Laws in their respective states.
o Public Record Acts
State laws grant citizens access to specified records,
including records of school board meetings and other
records in the system. Records which are exempt by state
law from disclosure are not available under Public Record
Acts. Remember in the electronic age that e-mail constitutes
a public record. In other words, be as cautious about what
you put in e-mails as you are about what you put in more
traditional documents. The laws specify what records are
subject to inspection and the conditions under which the
records may be obtained.
o Open Meeting (Sunshine) Laws
Boards of education, like other public bodies, must operate
in the sunshine. Boards must notify the public of all
meetings, regular and special. The laws impose penalties for
violating them. Boards can go into executive session for
certain matters like personnel and real estate; however,
decisions from executive sessions must be announced in a
public sessions.
The Courts
Court System
Supreme Court
Court of Appeals
Trial Court/District Court
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• State Courts
In most states, the highest court is called the Supreme Court;
however, this varies in some states. A higher court can always
overrule a lower court. Appellate courts do not retry the case or
controversy. The matter goes up on the written record. Supreme
Courts can afford parties the opportunity to argue their case
without going through a full retrial. The courts from lowest to
highest are:
• Trial Court
• Appellate Court
• Supreme Court
The opinions from state courts are published in reporters for each
state as well as regional reporters which include cases from all the
states within a certain region.
Court Opinions
• U. S. District Courts - 853 F.Supp. 651 (1994)
• U. S. Court of Appeals – 730 F.2d 1405 (1984)
• U. S. Supreme Court
–503 U.S. 60 (1992) – the report usually cited
–___ S.Ct. ___ (----)
–___ L.Ed. ___ (----)
•State Courts
–State reporters
–Regional reporters (N.W.2d, So.2d, S.E.2d, etc)
• Federal Courts
• U.S. District Courts – Federal Supplement
There is at least one district court in every state. More
populous states have two or more districts in the state.
Decisions of the district courts, when reported, are contained
in the Federal Supplement.
[Volume] F.Supp. [Page number]
• U.S. Appellate Courts – Federal Reporter
Appellate courts serve a designated set of states. For
example, the Eleventh Circuit Court of appeals hears cases
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from district courts in Florida, Georgia, and Alabama. Cases
from circuit courts are reported in the Federal Reporter.
[Volume] F.2d or F.3d [Page Number]
• U.S. Supreme Court – U.S. Reports
The United States Supreme Court has nine Justices who are
appointed by the President with the approval of the Senate.
This is true for all federal judges who, like the President,
have tenure. Impeachment is the only process that can
remove them from office. The decisions of the Supreme
Court are reported in the U.S. Reports, the Supreme Court
Reporter, and the Supreme Court Reports, Lawyer’s Edition.
§ [Volume] U.S. [Page number]
§ [Volume] S.Ct. [Page number]
§ [Volume] L.Ed. [Page number]
Resources
Internet Resources
http://www.findlaw.com/- best source for Supreme Court & Circuit
Court cases
http://caselaw.findlaw.com/data/Constitution/amendment01
http://www.udayton.edu/~aep/online/class/case16.htm - excellent
information on how to brief cases
http://www.law.cornell.edu/ - excellent resource
http://www.edweek.org - archives allow you to search current legal
issues in education
http://www2.law.cornell.edu/citation/ – a good resource on legal
citation
http://oyez.nwu.edu/ - case briefs and audio files on landmark cases
http://www.supremecourtus.gov/ - the official US Supreme Court site
- source for Supreme Court orders
http://www.uscourts.gov/ - federal judiciary homepage
http://www.washingtonpost.com/wpsrv/national/longterm/supcourt/supcourt.htm – good source for general
legal information
http://www.aclu.org/ - site promotes ACLU issues
http://www.law.harvard.edu/groups/civilrights/ – promotes civil rights
issues
http://www.doe.k12.ga.us/ - Georgia Department of Education site; each
state education site will contain valuable resources
http://www.ganet.org/services/ocode/ocgsearch.htm – Georgia code
online
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http://law.gsu.edu/library/metaindex – a gold mine of references and
links
http://www.law.emory.edu/ - excellent information about federal courts
- GCPS home page
http://www.lawnewsnetwork.com/ - general legal information
http://www.gwinnett.k12.ga.us/ - local school web pages may provide
access to local board policies and regulations
http://www.library.vanderbilt.edu/education/bibliographies/index.htm
l
http://curry.edschool.virginia.edu/curry/class/edlf/875/cite.html
http://www.freedomforum.org/first/timeline97.asp
Textbooks
• Alexander, K & Alexander, M. The Law of Schools, Students and Teachers;
In a Nutshell. 2nd Ed. St. Paul, MN: West Group, 1995.
• Alexander, K. and Alexander, M. American Public School Law. 4th Ed.
Belmont, CA: West/Wadsworth, 1998.
• LaMorte, M. School Law: Cases and Concepts. 6th Ed. Boston: Allyn and
Bacon, 1999.
• McCarthy, M., Cambron-McCabe, N. & Thomas, S. Public School Law:
Teachers’ and Students’ Rights. 4th Ed. Boston: Allyn and Bacon, 1998.
Other References
• Mead, J. F. (Ed.) The Schools and the Courts. Asheville, NC: College
Administration Publications, Inc., http://www.collegepubs.com
The Governance of Education
Tenth Amendment
Under the U. S. Constitution, education is a function which is reserved to
the states. All states today provide for education in their state
constitutions because, from the beginning of the republic, education has
been regarded as essential. If people are not educated, then the freedom of
others is at stake. Education has not always been as universal as it is
today. In colonial days, education was mainly for those who could afford
it. Gradually, states in the northeast began to pass laws which provided
education so the students could read the Bible (the Old, Deluder Satan
Acts). In fact, Thomas Jefferson supported education for all through early
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grades. Then, education was to be made available to those who could
afford it. A few worthy students who could not afford further education
were granted scholarships. It was only in the late 20th Century that
education became truly universal with the inclusion of all students in the
process.
Education
State constitutions have various provisions for schooling. States set the
ages for compulsory education, usually from 7 to 16. States also recognize
that parents have an interest in the education and upbringing of their
children.
• Public Schools
In one way or another, state constitutions provide that “free and
appropriate education at public expense” should be available to all
children.
o Hartzell v. Connell
In the wake of Proposition 13 in California which limited taxation,
the Santa Barbara High School District decided to charge a fee for
participation in extracurricular activities. In spite of the fact that the
district provided for students who could not afford the fees, the
court ruled the fees violated the free education guarantees of the
California Constitution. Other jurisdictions charge fees for certain
extracurricular activities.
Many schools charge fees, which some schools districts now refer
to as voluntary contributions. If push comes to shove, it is likely
that courts would rule that such fees violate the free public
education provisions of state constitutions. As far as the courts are
concerned, free means free.
o Plyler v. Doe
Plyler established that states cannot deny educational benefits to
children who are unlawful immigrants through no fault of their
own. The Equal Protection Clause of the Fourteenth Amendment
guarantees rights to “any person” residing in the state. Education is
so important that denying it would have serious adverse
consequences for these children.
• Private Schools
Parents may send their children to private or parochial schools. The
states have the right to require these schools to meet standards such
as the number of school days, the length of the school year, and
other matters.
• Home Schools
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Home schooling is a growing trend. States make various provisions
for home schooling. The state may mandate the length of the school
year and may require parents to register with the Local Educational
Authority (LEA). The state may also test students to make sure they
are meeting academic expectations.
Private/Home School
Regulation
• Length of school year – number of days with attendance
records
• Provision of a basic program of studies including certain
specified courses of study
• Provide local school system with information on students
• Standardized testing for home schooled students
• Academic requirements for home school instructors
Note: These provisions will vary from state to state.
• Charter Schools
Charter school legislation varies widely from state to state. In some
states, any group may organize and apply for a charter. In other
states, charter schools are, in essence, special public schools.
Case Law
o Meyer v. Nebraska
In the wake of World War I, Nebraska passed a law which
prohibited the teaching of German to students who had not
“graduated” from the eighth grade. The Supreme Court ruled that
parents had a say in the “education and upbringing of their
children.” The state could not make such a law.
o Pierce v. Society of Sisters
The State of Oregon, in a zenophobic reaction after World War I,
passed a statute that would have closed private and parochial
schools. The Society of Sisters and a military academy challenged
the law all the way to the U. S. Supreme Court. The Justices held
that the state could not prohibit private schools. Relying on Meyer,
~15~
the Court upheld the right of parents to have a say in the education
and upbringing of their children
o Wisconsin v. Yoder
The State of Wisconsin had taken legal action against Amish
parents for refusing to comply with the compulsory attendance
law. The Court ruled that the Amish children did not have to
attend public school after the eighth grade. The Amish wanted to
protect their children from secular influences. The Court noted the
solid Amish tradition. The parents provided education in farming
and homemaking for their children. The Amish lifestyle was selfsufficient; therefore, the fact that the children did not get a high
school education would not unduly burden society with unskilled
workers later on.
Religion
One commentator has said that the court decisions regarding religion in
the public schools have been ignored more than decisions related to
discrimination. Whether that be the case or not, this presidential election, like
previous elections, has focused attention on the issue of religion in the schools.
Some rue the day that prayer was “taken out of the public schools.” Others argue
just as vehemently that sectarian prayer should never have been in the public
schools. More than one pundit has said that there will be prayer in schools as
long as there are exams. A close examination of the court decisions indicates that
the Court has been sensitive to the issue of religion in a pluralistic society.
Some dispute the facts; however, it is clear that many of our forebears came to
this country to escape the vicissitudes of religious persecution by the majority in
their native country. The Court has sought to prevent majoritarian rule in
religious matters without, of late, building too high a wall of separation between
church and state.
Prayer/Religious Activities in Schools
•
•
Everson v. Bd. of Educ. of Ewing Tp. The Court upheld a New Jersey
statute that reimbursed parents for transportation expenses
incurred for sending their children to and from school. It was
within the power of the legislature to provide for safe
transportation to and from school even though some parents who
received the funds sent their children to parochial schools. This
gave origin to the “child benefit theory.” Everson is also important
because it is often cited by Justices who are interested in lowering
the wall of separation between Church and State.
Engel v. Vitale
~16~
•
•
•
The courts have ruled that schools cannot engage in practices
which involve specified prayers and readings form the
Hebrew/Christian Bible in the schools. In Engel, New York tried
once again to write a nondenominational prayer that would pass
judicial scrutiny. The prayer read: “Almighty God, we
acknowledge our dependence upon Thee, and we beg Thy
blessings upon us, our parents, our teachers and our Country.” The
Supreme Court ruled that states cannot “compose” prayers to be
said in schools.
School Dist. Of Abington Township v. Schempp
Murray v. Curlett
Schempp and Murray both dealt with prayer and Bible reading in
Pennsylvania and Baltimore County, MD respectively. Again, the
Court ruled that such practices violate the separation of church and
state as contained in the Establishment Clause of the First
Amendment. During the 60s and 70s, the “wall of separation”
between church and state was relatively high. More recent
decisions seem to lower the wall.
Santa Fe ISD v. Doe
In the spring of 2000, the Supreme Court considered a case from Texas.
The fear of retaliation on the plaintiffs was so great that the district court
had allowed the plaintiffs to file under the name of Doe. Catholic and
Mormon parents brought the suit. The Supreme Court ruled that allowing
students to say prayers before athletic events involved the endorsement of
the state and contravened the First Amendment. The Court cited
majoritarian rule as the main reason the practice violated the First
Amendment.
Shortly thereafter, the Court remanded the Alabama case, Chandler v.
Siegelman which originated as Chandler v. James, for reconsideration in
light of Santa Fe. At this point the Court seems to be saying that any
prayer before school events is state sanctioned; therefore, such practices
(athletic events, graduation, etc.) violate the First Amendment. The 11th
Circuit concluded in October 2000 that its previous ruling in this case was
not in conflict with Santa Fe. “Santa Fe condemns school sponsorship of
student prayer. Chandler condemns school censorship of school prayer. In
their view of the proper relationship between school and prayer, the cases
are complementary rather than inconsistent.” Genuine student-initiated
school prayer is private speech and is protected. The case was remanded to
the district court. Expect to see more of this case on upcoming court
calendars.
The Supreme Court also vacated an 11th Circuit decision in Adler v.
Duvall County. Subsequently, the 11th Circuit reaffirmed its original
decision allowing student initiated speech at graduation exercises
~17~
•
•
•
•
Lee v. Weisman
Weisman involved a Rhode Island junior high school which
allowed clergy from various denominations to offer prayers on a
rotating basis under strict guidelines. The Court ruled that the
school district could not continue this state-sanctioned practice.
Lamb’s Chapel v. Center Moriches Union Free School Dist.
Lamb’s Chapel is a case which involves the use of school facilities.
The board tried, under their interpretation of state law in New
York, to prohibit a group from using school facilities to show a
series of movies from Focus on the Family. The Court ruled that the
school district could not refuse to allow use of the facility just
because it disagreed with the content of the program. The district
had created a limited public forum and, therefore, could not
disallow use by this group when it had allowed other groups
which emphasized family values to use the facilities. See also Good
News Club v. Milford Central School.
Westside Bd. of Educ. v. Mergens
Congress passed the Equal Access Act which said that schools
which offered noncurricular activities had to allow student
religious groups to use the facilities under the same conditions as
other noncurricular groups. The Westside Board had refused to
allow a Christian group to use the facilities. The Equal Access Act
provided that:
o schools had to grant access to school facilities during
noninstructional times.
o the activities had to be student-led and student-initiated.
o club activities can be included in school publications,
announcements and other notices
o the school administration could provide someone to
supervise the group to protect school property.
o the supervisor is not to act as a sponsor for the group.
The Supreme Court upheld the constitutionality of the Equal
Access Act. Westside had allowed noncurricular groups,
such as the chess club and scuba diving club, to use school
facilities.
Agostini v. Felton
The U. S. Supreme Court overturned two previous rulings in this
decision – Aguilar v. Felton and Grand Rapids School Dist. v. Ball.
Previously, the rulings had held that Title I funds could not be used
to provide for teachers in religious schools because of the
Establishment Clause. The Court, reversing itself, held that such
arrangements would not result in excessive entanglement.
~18~
Services to Students
•
•
Lemon v. Kurtzman
This case is the source of the standard Lemon test which is now the
subject of controversy among jurists. Recent court decisions have
tended to apply the coercion standard instead of the three-pronged
Lemon test. The Lemon test asks:
o Does the government action have a secular purpose?
o Does the action have the primary effect of either
enhancing or inhibiting religion?
o Does the action result in excessive entanglement
between church and state?
In Lemon, the Court applied the standards to cases from
Pennsylvania and Rhode Island. Both states had adopted
legislation which provided salary supplements for teachers in
religious schools as well as and instructional materials and
equipment. The case was decided on the entanglement prong. The
arrangements for monitoring the program and fiscal accountability,
in the opinion of the Court, created excessive entanglement
between church and state.
Mitchell v. Helms
In a recent case from Louisiana, the Supreme Court extended its reasoning
in Agostini. The Court ruled that the provision of instructional materials
and equipment under Chapter 2 does not violate the Establishment Clause
of the First Amendment. This is another example where the courts seem to
be lowering the wall of separation between church and state.
Students
Students do not “shed their constitutional rights at the schoolhouse door”
(Tinker). Student rights have gained increasing recognition over the last 50 years;
however, Hazelwood made it clear that the rights of students “are not coextensive
with those of adults” in our schools. In recent years, Courts have been inclined to
grant broad discretion to the wisdom of school officials as the courts have taken a
less active role in regulating agencies who are in compliance with basic legal
requirements.
First Amendment
• Speech
o Tinker v. Des Moines ISD
This is the famous 1969 black armband case. Students in Des
Moines had decided to wear black armbands to support a
Christmas truce during the Vietnam War. The school officials
suspended the students from school until such time as they would
return without their armbands. The Court held that the students
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had rights to free expression in schools. The school officials had no
evidence that the wearing of the armbands, which constituted
symbolic speech, would substantially disrupt the educational
atmosphere in the school. School officials have to be able to
“forecast substantial disruption” before they can limit the
constitutional rights of students.
o Bethel School Dist. No. 43 v. Fraser
Fraser took Tinker to the extreme. In a campaign election speech
before the student body, which included younger high school
students among others, Fraser used blatant sexual metaphors and
innuendo to support his candidate. The school suspended the
student and took away his right to deliver a graduation speech. The
lower courts upheld the student. The U. S. Supreme Court ruled
that the suspension did not violate the First and Fourteenth
Amendment rights of Fraser. Schools have a responsibility to
inculcate “habits of civility.” It is also proper for the school to take
action to dissociate itself from lewd conduct and speech. The school
rule, while not specifically addressing Fraser’s conduct, gave him
sufficient notice that the “use of obscene, profane language or
gestures” was not acceptable conduct. Schools cannot be expected
to anticipate every specific thing a student might do.
• Dress
School officials have wide discretion to regulate student dress
provided they do not infringe constitutional rights to free
expression. In the 70s, the Courts were divided over the power of
Boards to regulate hair length. Issues related to choice of dress may
be weightier especially if the person wearing the garb intends to
express a particularized message which others can understand.
School officials may regulate dress which is associated with gangs
especially if there is evidence of gang activity in the community
and school. School officials should be certain that the garb they are
banning is definitely considered to be gang-related.
o Boroff v. Van Wert City Bd. of Educ.
The Supreme Court, in March 2001, refused to grant certiorari in
this case. School offials had disciplined a student who insisted on
wearing a variety of Marilyn Manson T-shirts to school. The Court
held that the school could restrict expression which dealt with
values counter to those being taught in the school environment.
o Canady Bossier Parish School Bd.
Schools officials can require students to wear uniform provided
that they are not suppressing particular student expression. The
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administration showed that the wearing of uniforms was
reasonably related to legitimate school purposes, namely improved
student performance and reduced disciplinary infractions.
o Chandler v. McMinnville School Dist.
Absent a showing of a threat of substantial disruption, school
administrators could not ban the wearing of anti-scab T-shirts by
two students whose fathers were teachers who were striking
against the school system.
o Hines v. Caston School Dist.
The Court upheld the right of the Board to forbid the wearing of
earrings by male students. The policy had a reasonable relationship
to the school’s interest in promoting attitudes that positively
reflected community standards and discouraged rebellion by
students. The Courts also noted that the policy improved student
achievement, fostered higher rates of attendance and lower dropout rates. See also, Castorina and West.
• Expression
o West Virginia Bd. of Educ. v. Barnette
It is a sound principle of American constitutional law that the state
cannot compel belief or the expression of belief. Previously, the
Court had ruled in Minersville v. Gobitis that the state could compel
students to participate in the flag salute. In 1943, the Supreme
Court reversed itself. The plaintiffs, Jehovah’s Witnesses, believed
that their religious beliefs forbade them to give allegiance to any
graven image. Students who refused to participate were charged
with insubordination and suspended. The state could not compel
these children to participate. The Bill of Rights places certain things
“beyond the reach of majorities.” No one can prescribe what shall
be orthodox in matters of “politics, religion, nationalism, or other
matters of opinion.” Often, teachers think that they can compel
students who do not wish to participate in the Pledge of Allegiance
to stand. They cannot. This is compelling belief. Teachers can
discipline students who disrupt the Pledge and, therefore, interfere
with the rights of other students. See also Sherman.
o Bown v. Gwinnett County School Dist.
This 11th Circuit Court of Appeals decision involved the dismissal
of a teacher who refused to comply with the Georgia law and who
abandoned his job after being ordered to comply with the law. The
statute requires a moment of silence at the beginning of the school
day. The Court decided that this was meant to be a moment of
silence and did not prescribe religious belief or expression. This is
different from Wallace v. Jaffree where the Supreme Court ruled that
Alabama’s law, which is similar to Georgia’s, was based on a series
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of laws which had the explicit purpose of returning prayer and/or
meditation to the public schools. The Circuit Court’s review of the
legislative history in Georgia did not indicate that the purpose was
to restore religion to the schools.
• Internet
o Acceptable Use Policy. Schools and school districts should have
acceptable use policies in place. These policies give parents and
students notice about what students can do and cannot do on
school computers, including computers which are wired to the
Internet. School districts usually have firewalls which limit access
to some unobjectionable material. Students who violate acceptable
use policies should be disciplined accordingly.
o Free speech is another emerging Internet issue. In general, only
student speech which substantially disrupts the educational
atmosphere or which is defamatory or obscene gives grounds for
disciplinary action. Internet sites, especially on a student’s home
computer, which poke fun at school officials, without more, may
represent legitimate free speech. Internet speech which threatens
the safety of others or which is defamatory or obscene need not be
tolerated.
• Press
o Hazelwood School Dist. v. Kuhlmeier
Whether a principal can exercise prior review and remove
objectionable materials from a school newspaper was at issue in
this case. The draft of the school newspaper contained two stories
which the principal expunged. One dealt with pregnant students
and the other dealt with the parents of divorced students. The
Court held that principals can exercise prior review of articles to be
published in school newspapers. Principals can then “censor”
articles if they have a valid educational purpose for doing so. The
age and maturity of the students is a factor. Whether the material is
obscene or vulgar is an important consideration. Another factor is
whether the school sponsors the publication as a curricular or
cocurricular activity. This ruling applies to all school “publications”
including newspapers, yearbooks, and fine arts productions. In
essence, speech in official “publications” occurs in the name of the
school and the school does not have to affirmatively support
particular student speech which it deems objectionable.
Fourth Amendment – Search and Seizure
o New Jersey v. TLO
Students have an expectation of privacy. The requirements for
search and seizure for school officials differ from those for police
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officials. School officials have to have reasonable suspicion. Police
officials have to have probable cause. In this case, the assistant
principal who had caught two girls smoking in the rest room,
searched the purse of one student and found marijuana. The
parents brought legal action to have the evidence thrown out in the
juvenile court proceedings because the search was illegal. The
Supreme Court held that school officials can search students if they
have reasonable cause. Was the search “justified at its inception?”
And, was the search “reasonably related in scope to the
circumstances which justified the interference in the first place?”
School officials have the right to search lockers and vehicles parked
on campus. It is best to have students sign a form for lockers and
parking which indicates that they understand this. The general rule
is that the more intrusive the search, the greater cause the school
officials must have. School officials should avoid strip searches or
searches which are intrusive of the student’s person.
o Vernonia School Dist. v. Acton
Drug testing is an invasion of the expectation of privacy. Random
drug testing represents a suspicionless search and can be done only
if school officials meet rigid legal requirements. The school system
was concerned about a drug culture in which athletes played a
prominent part. After community input, the system instituted a
drug testing program. Drug testing is an invasion of privacy.
Balancing the interests of the students’ rights to privacy with the
school system’s interests, the Court ruled that, given the rampant
problem which existed in that community, the school could
institute a random drug testing program which included
suspension for athletic activities for students who tested positive.
See also, In re Randy G.
Eighth Amendment – Corporal Punishment
o Ingraham v. Wright
Students in Florida who felt that the corporal punishment, which
had been administered had been severe, brought this action
claiming that corporal punishment violates the Eighth Amendment
prohibition against cruel and unusual punishment. The court held
that the Eighth Amendment did not apply to corporal punishment
in schools. The imposition of corporal punishment did not violate
the students’ rights to due process. Students have civil and criminal
redress against corporal punishment which is severe and/or
delivered out of malice.
Some states have abolished corporal punishment. Other states leave
the decision whether to use corporal punishment up to local school
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boards. Educators need to be aware of the state and local
regulations in their states and school systems.
Fourteenth Amendment
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein
they reside. No state shall make or enforce any law which shall abridge the
privileges of immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law; nor
deny any person within its jurisdiction the equal protection of the laws.
• Due Process
Students have constitutional rights. While these rights are not co-extensive
with the rights society accords adults, students have the right to due
process of law. Due process means fundamental fairness. Due process can
be substantive and/or procedural. Substantive means that the thing being
done to the student violates fundamental constitutional rights, e.g. the
right to free speech. Procedural due process deals with the manner in
which the student is treated.
o Goss v. Lopez
Goss held that school officials must accord students minimal due
process when their fundamental rights are at stake. If expulsion for
more than 10 days is a consequence, then school officials have
weightier duties with respect to due process. Due process means
that students have a right to notice of the charges against them. The
student also has a right to be heard. Due process need not be a
laborious process. If an administrator confronts a student charged
with smoking in the rest room and the student subsequently denies
the charge, the administrator who witness the student smoking can
then charge the student with the rule violation based on what
he/she observed in spite of the student’s denial. Due process does
not mean that the administrator has to agree with the student’s
account. When the weight of evidence is contrary to the student’s
version, the school administration has accorded due process and
can proceed with disciplinary sanctions.
Speaking of disciplinary sanctions, make sure that they are written
down in sufficient detail to give students notice of what constitutes
a violation of the school rules.
o Wood v. Strickland
Female high school students had spiked the punch with malt liquor
during a school-sponsored function. As the board was meeting to
discuss the situation, one of the girls got in a fight at a basketball
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game. The board subsequently suspended the students for the
remainder of the semester. Board members can be liable for
damages if they “knew or should have known” that they were
violating the constitutional rights of students under Title 1983.
If the removal from school is to exceed 10 days, then students
might have additional rights such as the right to counsel, the right
to confront and cross examine witnesses against him/her, and the
right to call his/her own witnesses according to Wood. See also Seal
v. Morgan.
• Equal Protection
Equal protection is involved in numerous cases. People who are similarly
situated must be treated in a similar manner. If the state treats persons
who are similarly situated differently, then the state has to have very good
reasons for doing so. Discrimination on the basis of race, class, ethnic
origin, gender, religion, and age is prohibited by constitutional law and
various federal and state laws.
Curriculum Issues
• Testing – High Stakes
Testing has always been controversial. In the wake of today’s
growing reliance on high stakes tests, it is no wonder that the
legal implications of such programs are being debated. High
stakes testing refers to tests which have serious consequences,
such as not being promoted to the next grade or not being
allowed to graduate with a regular academic diploma.
o Debra P. v. Turlington
Debra P. sets the guidelines for testing. Florida implemented
a competency exam for high school students. Students who
did not pass the test could not graduate. Initially, the court
ruled that the test could not be implemented because the
students had not been in an unitary school system for 12
years. Once the students in Florida had been in unitary
schools for 12 years, the injunction was lifted. Extensive
research conducted by Dr. James Popham established the
validity and reliability of the tests. In essence, the courts held
that the state had to show that the students had been taught
the material on the test. Additionally, the courts required
that students have proper notice of the testing program and
the consequences of the program.
o GI Forum v. Texas Educ. Agency
GI Forum represents a challenge by minority students in
Texas. The plaintiffs contended that the TAAS test, which is
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required for graduation, violated their constitutional rights.
A federal court judge rules that the TAAS did not violate the
rights of minorities. The Debra P. standards were applied
and the TAAS passed constitutional muster. Given the
extensive remedial programs initiated by Texas and school
districts, the court concluded that the minority students
were likely to benefit academically from the total reform
program.
o The US Department of Education has issued draft
guidelines for high stakes testing. The controversy seems to
hinge on recommendations from experts that high stakes
decisions should not be based on one test. Proponents of the
testing contend that the students are given multiple
opportunities to take and pass the test. In addition, they
argue that the interventions are in place to help students be
successful.
• Evolution/creationism
o Epperson v. Arkansas
o Edwards v. Aguillard
o Arkansas Board of Education
Whether it is on car bumper stickers or decals or in the
science classroom, the debate over Darwinism continues to
rear its head. In 1968, the Supreme Court ruled in Epperson
that Arkansas’ anti-evolution statue violated the
establishment Clause. Subsequently, Edwards held that the
State of Louisiana could not require the teaching of
creationism as well as evolution. In 1999, the Kansas Board
of Education omitted evolution from its core curriculum.
Critics charge that the board acted in the hope that teachers
would have so much other material to teach that they would
not have time to teach evolution as a scientific theory. In
January 2001, the newly seated state board indicated that it
would restore evolution to the state science curriculum.
• Textbooks/Library “Books”
The selection of textbooks and library materials are other issues
with legal implications. Boards should adopt procedures for
selecting textbooks and library books. The procedures should give
broad input into the selection process. It is highly recommended
that, with in reason, boards and teachers should give parents
options on particular assignments so long as the basic integrity of
the curriculum is not compromised. Educators selecting
curriculum materials should consider: the age and maturity of the
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students, whether the materials are related to the adopted
curriculum, and whether the materials are defamatory or obscene.
o Bd. of Educ. of Island Tree School Dist. v. Pico
Pico established that removal of books from media centers is
another matter. Once a book is on the shelves the legal
requirements with reference to removal of the books scale
up. Note that whatever applies to books applies to all media,
films, computer programs, etc. Media specialists cannot
simply remove books because they dislike the books or
because the books are controversial. Schools and school
districts should have procedures which allow parents the
opportunity to challenge materials.
Decisions regarding curriculum materials should be based
on the appropriateness of the materials given the age and
maturity of the students. Curriculum materials should be
related directly to the published curriculum. Material which
is patently obscene or defamatory can be proscribed.
o Wilson v. Chancellor
Wilson established that boards cannot proscribe speech in the
classroom. The board had attempted to ban a communist
from speaking in a social studies class after the teacher had
had people from other political parties speak to students.
Once a school has established a public forum, it cannot pick
and choose among persons based on whether their views are
popular.
Miscellaneous
• Immunization
o Berg v. Glen Cove City School Dist.
In general, states and school systems can require students to be
immunized against common childhood diseases unless the parents
have bona fide religious objections to immunizations. This is a
matter of public health and safety. States usually give parents the
opportunity to file a notice stating that they object to immunization
on religious grounds. States and courts are more reluctant to grant
waivers based on philosophical or personal beliefs. During
outbreaks or epidemics, schools can require that students who have
been granted a waiver from immunization stay out of school until
the danger period has passed.
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Teachers
Education has come a long way since boards routinely could mandate particular
conduct on the part of teachers. Teachers have constitutional rights.
First Amendment
• Speech
Pickering and Mount Healthy establish that teachers can speak out on
matters of public concern. Conduct on the part of teachers which disrupts
close working relationships and which disrupts the educational
atmosphere is usually not constitutionally protected.
o Pickering v. Bd. of Educ. of Township High School established that
teachers can speak out on matters of public concern. Pickering
was concerned about a proposed referendum. He wrote a letter
to the editor of the local newspaper. He was critical of the
school administration for spend more on athletics than
academics. He was also concerned that teachers were being
compelled to support the referendum. When school officials
attempted to dismiss Pickering, the court held that his speech
was protected speech. Even when Pickering’s protected speech
involved errors of fact, the court held that the errors were not
willful or malicious. Pickering was speaking as a citizen on
matters of public concern.
o Mount Healthy City School District v. Doyle refined the law on
teacher “speech.” Doyle had previously been in a physical
altercation with another teacher, has berated a lunchroom
worker for not giving him enough spaghetti, and had made an
obscene gesture to a female student who did not comply with
his directives in the lunchroom Most immediately, Doyle had
circulated to a local radio station the contents of the school’s
new dress code regulations. The board subsequently dismissed
Doyle citing his lack of discretion. If the teacher claims that
he/she was dismissed for constitutionally protected reasons, the
burden is then on the board to show that the teacher would
have been dismissed even if the protected conduct had not
occurred. Otherwise, the Court concluded that any teacher who
had been dismissed could claim a constitutional violation after
the fact and protect his/her job. The Court held that Doyle‘s
conduct gave the board sufficient reason to dismiss him.
o Connick v. Myers dealt with a situation where an employee in
the district attorneys office was dissatisfied with a job
reassignment. She circulated a survey dealing with morale in
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the department. The Court held that this was not protected
speech because it did not deal with a matter of public concern
and disrupted the efficiency of the office.
• Expression
o East Hartford Education Assn. v. Bd. of Educ. of Town of East
Hartford
o Gaylord v. Tacoma School Dist. No. 10
o Kelley v. Johnson
Numerous cases involving teacher rights have been litigated
over the years. In Fowler, the court upheld the dismissal of a
teacher who showed the video Pink Floyd to her class on a day
when she was working on grades. East Hartford and Kelley held
that boards can regulate the dress and grooming of teachers. In
an evolving area of law, some court decisions, e. g. Gaylord,
have held that teachers who engage in overt homosexual
behavior can be terminated. In March 2001, the Ninth Circuit
Court of Appeals ruled that federal civil rights statutes prohibit
discrimination based on gender and not discrimination,
however despicable the conduct which constituted harassment,
based on sexual preference. Educators should be aware that at
least 12 states and some local governments do have statutes that
allow suits for discrimination based on sexual preference. In
many school systems, the military “don’t ask, don’t tell” policy
may be the course of action that is followed most often.
Fourteenth Amendment
• Due process
Teachers cannot be deprived of life, liberty or property without due
process of law. Teachers have liberty interests and property interests in
continued employment under specified conditions. The rights depend
very much on the applicable laws in each state.
• Equal Protection – Federal Statutes
o Tenure
Traditionally, tenure had been accorded to teachers and other
school employees after they have served a designated period of
service provided their service has been satisfactory. Lately,
legislatures have discontinued the practice of granting tenure to
teachers. Many states have withdrawn tenure protection from
employees. Note that employees who already have tenure retain it.
The laws abolishing tenure apply to future employees only. Causes
for dismissal vary under state laws. In general, the causes for
dismissal are: immorality, neglect of duty, insubordination,
incompetence, and other good and just cause.
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§ Bd. of Regents of State Colleges v. Roth
§ Perry v. Sindermann
Teachers who disagree with the administration, whether at
the public school or college level, often find themselves
without employment. Employers cannot dismiss employees
simply because they exercise constitutional rights to free
speech. The employee’s rights are determined by contract
law and state laws related to tenure. Teachers cannot be
dismissed during the term of their current contract without
due process of law. If the board can show sufficient reason
for dismissing the teacher, courts will uphold the action.
Most states require that employees who are not going to be
given a contract for the following year must receive notice
by a date specified in the state law. If an employee does not
have tenure, the board can terminate him/her for any reason
or for no reason. Some states have required at a minimum
that such employees be given reason for their termination. If
an employee has tenure, the board must accord full due
process. The law also specifies how an employee can appeal
if they are not satisfied with the decision of the local board.
Where administrative procedures are in place, employees
must meet all requirements. For example, many states
require teachers who have been dismissed to exhaust their
administrative remedies before the State Board of Education
before they can take the matter to court. All appeals must be
taken within the time limits specified in the law.
Roth and Sindermann established that employees have liberty
and property interests in employment. Employees have
liberty interests to pursue their chosen profession.
Employees, if tenure is granted by law, have property
interests in continued employment. In Sindermann, the fact
that the college handbook said that employees could expect
continued employment if their performance was satisfactory
was sufficient to establish tenure. Reasons which are given
do not impose a stigma that interferes with liberty interests
unless the charges are serious. Inability to manage a
classroom does not impose a stigma. Charges related to
dishonesty or shoplifting, for example, are serious enough to
impose a stigma.
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Reasons for Dismissal
• Counseling students to
violate laws and rules
• Incompetency
• Insubordination
• Reduction in staff
• Willful neglect of duty
• Failure to secure &
maintain educational
training
• Immorality
• Violations of ethics codes
o Erb v. Iowa State Bd. of Instruction
o Gillett v. Unified School Dist. No. 276
o Barcheski v. Bd. of Educ. of Grand Rapids
o Marshall v. Kirkland
o Eckmann v. Bd. of Educ. of Hawthorne
o Geller v. Markham
o Cleveland Bd. of Educ. v. LaFleur
Teachers who are charged with immoral conduct may face
the loss of their job. One moral lapse related to adultery was
not sufficient to revoke the certificate of Erb. A court upheld
the dismissal of a teacher for shoplifting even though her
doctor said the behavior was caused by altered states due to
food allergies in Gillett. Under case law and federal statues,
boards cannot differentiate among employees on the basis of
gender. Marshall held that promoting males to
administrative positions because they were thought to be
more capable in such positions and differential pay for male
employees are impermissible. Boards cannot discriminate
against employees on the basis of age (Geller). Courts have
held that boards cannot dismiss female teachers who have
children out of wedlock. LaFleur established that pregnancy
must be treated like any other disability for leave purposes.
Arbitrary dates for leaving before childbirth and returning
thereafter violate the Fourteenth Amendment rights of
employees. Administrators must realize that various federal
laws prohibit discrimination in employment decisions when
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such decisions are based on age, gender, religion, and
national origin.
Desegregation
Fourteenth Amendment
• Federal Statutes
After the Civil War, Congress enacted and the people ratified the
Thirteenth, Fourteenth, and Fifteenth Amendments in order to protect the
rights of former slaves. In 1871, Congress enacted the Civil Rights Act of
1871. Many students and teachers have used §1983 to gain access to
federal courts because they believe that their civil rights had been
violated. President Johnson signed the Civil Rights Act of 1964. Title VI
and Title VII protect employees and students from discrimination.
42 U.S.C. 1983
Any person who, under the color of any statute,
ordinance, regulation, custom or usage, of any State or
territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United states
or other person residing within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, and
shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress.
• Case Law
o De facto and de jure
De jure segregation refers to segregated patterns which have
been created by state action. De facto segregation refers to
segregation which comes about when people, who are not
agents of the state, make choices regarding residence. It is
not unusual today to find school districts which had become
unitary, are resegregated because of residential patterns
related to personal choice.
o Plessy v. Ferguson
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o Brown v. Bd. of Educ. of Topeka
o Green v. County School Bd. of New Kent County
o Swann v. Charlotte-Mecklenberg Bd. of Educ.
o Columbus Bd. of Educ. v. Penick
o Keyes v. School Dist. No. 1, Denver, Colo.
o Milliken v. Bradley
o Missouri v. Jenkins
o Freeman v. Pitts
Brown clearly established that education is such an
important right that segregated schools are inherently
unequal. School districts were extremely reluctant to
implement the Brown mandate. The federal courts became
actively involved in making sure the mandates became
reality. The courts imposed various remedies, including
teacher and pupil assignment, busing, and equalized
facilities. However, the Supreme Court drew the line at
ordering cross-district busing even though it had ordered
intradistrict busing plans (Milliken). Keyes held that
segregative intent in a substantial part of a school district can
support a finding of the existence of a dual
system where there is no previous evidence that the state has
maintained a dual school system. Freeman ruled that the
government could release a school district from part of the
requirements for achieving unitary status if the district had
achieved unitary status with regard to those conditions.
The legal battles today are framed in terms of affirmative
action which is a current campaign issue. Courts have
clearly stated that quotas based solely on race are not
permissible when making decisions related to contracts,
employment, and admission to programs.
Administrators should be familiar with case law and the
federal statutes which prohibit discrimination on the basis of
race.
IDEA
IDEA Regulations
Encouraged by the victories in the civil rights arena, advocates for students and
adults with disabilities lobbied effectively for reforms which began with the
Education of the Handicapped Act. In 1997, Congress reauthorized IDEA and the
Department of Education has adopted administrative regulation to implement
the IDEA. The main provisions of IDEA 97 are: parent involvement in all phases
of the process, student involvement, the involvement of regular education
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teachers, placement of students in regular classrooms as often as practicable,
inclusion in testing programs, and preparation of transition plans for high school
students.
Administrators should also be aware that Section 504 of the Rehabilitation Act
may accord rights to students which are similar to the rights accorded by IDEA.
Often, students with ADD and ADHD and students who are HIV positive will
have a 504 plan.
Major Provisions of IDEA 97
• Parent involvement in all phases of process
• Student involvement in the process
• Involvement of regular education teachers
• Placement in regular classrooms as often as practicable
• Inclusion in testing programs
• Preparation of transition plans for high school students
Significant Changes
o Students are not to be subjected to unnecessary testing.
“Evaluation activities should include gathering information related
to enabling the child to be involved in and progress in the general
curriculum.” Use a variety of instruments and procedures.
o Procedural safeguards include parent notification, parent consent,
parent access to educational records, due process hearings
(including disclosure of evaluation results and recommendations,
the opportunity to present due process complaints, and mediation.
o “Related services means transportation, and such developmental,
corrective, and other supportive services (including speech
pathology and audiology, psychological services, physical and
occupational therapy, recreation, and medical and counseling
services, except that such medical services shall be for diagnostic
and evaluative pruposes only) as may be required to assist a
handicapped child to benefit from special education.”
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o IDEA 97 includes the following in the definition of a “child with a
disability”:
Child with a Disability
• Mental retardation
• Hearing impairments,
including deafness
• Speech/ language
impairments
• Visual impairments,
including blindness
• Serious emotional
disturbance
• Orthopedic
impairments
• Autism
• Traumatic brain injury
• Other health
impairments (OHI)
• Specific learning
disabilities
And because of this disability, the student needs
special education.
Case Law
o PARC v. Commonwealth of Pennsylvania
o Mills v. Bd. of Educ. of the Dist. of Columbia
o Bd. of Educ. of the Hendrick Hudson Central School Dist. v. Rowley
o Thomas v. Atascadero USD
o Grube v. Bethlehem Area School Dist.
o Cedar Rapids Community School Dist. v. Garret F.
PARC and Mills clearly established that school districts had to
provide free and appropriate education for students with
disabilities. In general, schools have to provide services for
students in order to give them the opportunity to benefit from the
educational program. Medical services are not required if they
must be performed by a physician. Services which can be provided
~35~
by nurses or lay persons who can be trained in the procedures are
required by IDEA. Expense is not an excuse not to follow the
dictates of IDEA. Rowley established that school districts do not
have to optimize educational benefits in order to comply with
IDEA. Thomas dealt with a kindergarten student with AIDS who
was biting other students. The school district could not exclude the
student because the student was entitled to protection under
Section 504 of the Rehabilitation Act. The Court ruled that the
school district could not exclude a student with one kidney from
participation in the football program in Grube. Safe decisions that
are not based on the best clinical, medical advice available will not
meet legal requirements under Section 504. In Garrett F., the Court
ruled that providing a person to assist the student with his
ventilator during the school day was required under related
services because such service are not medical services under IDEA.
School Finance
• San Antonio ISD v. Rodriguez
• Rose v. Council for Better Education
• DeRolph v. the State of Ohio
• NJ Cases
• Mueller v. Allen
• Strout v. Albanese
• Simmons-Harris v. Goff
• Bush v. Holmes
Recently, school finance schemes have been litigated in courts across the
country. Rodriguez established that challenges to state finance schemes
would have to be litigated in state court under provisions of state
constitutions. In spite of great disparities in per pupil spending between
the richest and poorest district, the Court held that education was not a
fundamental right. The state financing scheme in Texas bore a reasonable
relationship to state purpose and did not violate the U. S. Constitution.
Serrano v. Priest was the California case which set the stage for state courts
to reconsider school financing schemes under state constitutions. Serrano
established the principle of fiscal neutrality. The education a student
receives should not be a function of the taxable wealth of the school
district. Most states have developed and refined finance schemes which
attempt to equalize expenditures so that expenditures are not totally
dependent on the wealth of the individual district. School reform laws in
many states have reformed the means for financing public education in
order to reduce inequities in state spending. The Kentucky case, Rose v.
~36~
Council, caused the legislature to pass an educational reform act which
included provisions for better “equalizing” per pupil expenditures among
districts.
Some courts have ruled that states (e.g. New Jersey) must provide
additional funding for inner city schools because it is more expensive to
educate youth in these districts given the impact of poverty, mobility, and
other factors which lead to lower educational achievement.
The hot spot in school law finance today deals with various types of
voucher schemes. In Mueller, the 8th Circuit Court of Appeals upheld a
Minnesota statute which allows taxpayers with children in school to take a
credit on their state income tax. In Strout, the 1st Circuit Court of Appeals
held that Maine’s refusal to extend it tuitioning program to sectarian
schools did not violate the Free Exercise rights of parents who send their
children to parochial schools. The Sixth Circuit Court of Appeals
(Simmons-Harris) held that the Cleveland scholarship for low-income
students to attend private and parochial schools was unconstitutional. A
Florida Appeals Court upheld the provisions of the “A+ for Education”
statute which provides tuition to private schools, including religious
schools, for students who are in low-performing schools.
Thus far, the Supreme Court of the U. S. has refused to enter the voucher
fray.
Educator Liability
Torts
• Wood v. Strickland
• Carey v. Piphus
• Franklin v. Gwinnett County Schools
• Davis v. Monroe County Bd. of Educ.
A tort is a civil wrong independent of contract. Assault, battery, and
negligence are torts which educators may be accused of. Educators should
be extremely cautious about laying hands on students unless the
situation absolutely demands it for safety considerations. School
districts and educators can be liable “if they knew or should have known”
that they were violating the rights of students or employees (Wood).
School districts and educators can also be liable if they are negligent.
Negligence means that the person failed to exercise the due care expected
of a person in a particular position. Courts will ask whether the reasonable
educator could have foreseen the consequences of his/her actions. The
standard of care for a reasonable educator will be higher than the
standard for a lay person. Negligence has the following elements:
o The duty to protect another person
~37~
o The standard of care where risk increases as the standard of care
increases
o Proximate or legal cause where there is a connection between the
failure to act or not to act and the injury
o Injury or actual loss
o Foreseeability
Franklin involved a female student who alleged that a teacher coach
had coerced her into intercourse in his office during the school day.
The Supreme Court ruled that students and parents could sue for
damages under Title IX. The case was then settled out of court for an
undisclosed amount of damages. Davis also established that individual
persons can bring suit for damages under Title IX. The mother of an
elementary students alleged that a fellow classmate had repeatedly
subjected her daughter to sexual harassment. The case has been
remanded to the District Court for trial on the merits. The standard
established by the Supreme Court is that school officials can be liable
for damages if they fail to take appropriate action once they are aware
of allegations related to sexual harassment. See also Davis v. DeKalb
County School Dist, Floyd & Gebser.
Each school system and school is required to post the procedures for
reporting sexual harassment. Sexual harassment may be adult-toadult, adult-to-student, or student-to-student. Schools should
assiduously follow reporting requirements and should investigate all
allegations thoroughly. Sloughing off allegations without investigation
will result in serious consequences. Consult local requirements and
follow them. A word of caution – sometimes adults in the workplace
believe that it is OK to make comments of a sexual nature or to joke
about sexual matters. This is to be avoided at all costs. Note that this
includes email and forwarding jokes. An aside – many school
employees, fascinated with the new technology, regularly abuse the
use of email. Email is for business use and not for personal use.
Remember that the email can usually be traced even when the sender
has erased it. Most school systems back up the email on tapes. See also,
Sain v. Cedar Rapids Community School Dist.
Defamation
o Deselle v. Guillory
o N.Y. Times v. Sullivan
o Ellerbee v. Mills
Some courts have ruled that local school administrators are not
public officials; therefore, they can recover damages if they are
~38~
defamed under a different standard that that applied to public
officials. The status of administrators varies from state to state.
Teachers are usually not public figures.
School Records and Privacy
o Fay v. South Colonie Central School Dist
Case law and statutes, especially the Family Education Rights and
Privacy Act (FERPA), establish requirements for confidentiality with
regard to school employees. Many school employees are too quick
to discuss students and their particular situations with other
persons who do not have a right to know. School employees
should share information only with those persons who have a
need to know. Administrators should make sure that teachers are
aware of the law in this area. A changing area of the law is whether
school officials have to provide information to noncustodial
parents. In general, the safe course is for schools to share
information with noncustodial parents unless there is a court order
to the contrary. Some statutes also allow a caregiver (e.g. step
parent) to represent the interests of the student if the custodial
parent is unable to do so.
Provisions of FERPA
• Education record – contains information about student
& maintained by the school
• Parents have access to educational records (Students 18+)
• Written consent of parents for release
o Directory information can be released with a
general notice
• Law enforcement unit records can be shared
• Can share information with school employees who
have a need to know
~39~
Conclusion
There are multiple demands on school employees today. The law is just one of
many areas where school officials have to be on their toes. School officials should
know enough school law to be alert to potential situations which have high
stakes legal implications.
• Educators are not lawyers.
• School boards should retain lawyers who are able to serve as resources to
school officials.
• School boards should make sure that central level administrators provide
sufficient resources to local school personnel with regard to current legal
requirements.
• Educational leaders should keep up-to-date on legal issues
• Read publications which deal with school law
o NASSP Legal Memorandum
o Articles on school law in professional journals
• Attend professional conferences which include legal updates
• Have up-to-date desk reference material on school law in their offices
• Educational leaders and other school personnel should never talk to
attorneys about school-related matters before they have consulted with
the superintendent’s office and the board attorney
• Let attorneys talk to attorneys
• Don’t bite on the “off the record” friendly-type conversation with lawyers
or media personnel
• In legal situations, educational leaders should be thoughtful and
circumspect in the comments they make
• Educational leaders should assiduously follow all board policies and
procedures
Educational leaders should comply with state laws and state board
administrative procedures as well as federal requirements
~40~
Case Briefs
~41~
Abbott v. Burke
119 N.J. 287 (N.J. Supreme Ct. 1997)
Facts: Beginning with Robinson v. Cahill, the New Jersey Courts dealt with many
cases related to public school finance. This case adds a new dimension to school
finance litigation. The plaintiffs here contend that New Jersey is not adequately
funding education in poor urban districts.
Issue: Whether the “children attending public schools in various poor urban
school districts, the so-called ‘special needs,’ or ‘Abbott,’ districts” are funded
adequately under New Jersey’s Comprehensive Educational Improvement and
Financing Act of 1996 (CEIFA).
Previous History: The Supreme Court remanded the case to the Superior Court
for further proceedings consistent with its opinion.
Holding: CEIFA is unconstitutional in its funding provisions. “Additionally,
CEIFA does not adequately address the unique educational disadvantages facing
children attending schools in poor urban schools districts.” The Court required
the legislature to assure that expenditures in poor districts, commencing in the
1997-1998 school year, would be equivalent to per pupil expenditures in wealthy
suburban school districts.
Reasoning: CEIFA, like the legislation in Kentucky, also contained provisions for
educational reform via core curriculum content standards. The curriculum
standards are translated into per pupil “expenditures sufficient to deliver
education defined by the content standards to all students.” The content
standards adequately “discharge the Legislature’s duty to define the content of a
constitutional thorough and efficient education.” The funding scheme is
inadequate to equalize expenditures among wealthy suburban districts and poor
urban districts. The record documents that the “needs of children attending
school in poor urban districts vastly exceed the needs of other school children
throughout the State. These needs must be overcome for students in the poor
urban districts to achieve a constitutional thorough and efficient education. The
funding plan also fails to fund adequately the plaintiffs’ other educational needs
(e.g. Early Childhood Program). The State must also provide facilities that are
conducive to the delivery of a thorough and efficient education.
Significance: Could urban districts in other states prevail on a similar action?
Could parents and students within a school district successfully claim that the
system has to provide additional funds for schools with significant numbers of
students who are in poverty?
~42~
Abington School Dist. v. Schempp
(Murray v. Curlett)
374 U.S. 302 (1963)
Facts: This decision combined cases from Maryland and Pennsylvania. The
Pennsylvania district, following a state statute, required that “At least ten verses
from the Holy Bible shall be read, without comment, at the opening of each
school day. Any child shall be excused from such Bible reading, or attending the
Bible reading, upon the written request of his parent or guardian.” The Schempp
family, who attended the Unitarian church, brought this suit. In Murray, the
Board of Commissioners of Baltimore City, pursuant to state statute, adopted a
rule that “provided for the holding of exercises in the schools of the city,
consisting primarily of the ‘reading, without comment, of a chapter of the Holy
Bible and/or use of the Lord’s prayer.’”
Issue: Whether requiring the reading of the Bible and/or Lord’s Prayer at the
beginning of the school day violated the Establishment Clause of the First
Amendment as made applicable to the states by the Fourteenth Amendment.
Previous History: The District Court in Pennsylvania held that the practice was
unconstitutional. The trial court and court of appeals in Maryland upheld the
constitutionality of the required practice.
Holding: The practices mandated by Pennsylvania and the Baltimore City Board
of Education violated the Establishment Clause of the First Amendment.
Reasoning: Having noted that we are indeed a religious nation, the Court went
on to say that “this is not to say, however, that religion has been so identified
with our history and government that religious freedom is not likewise as
strongly imbedded in our public and private life.” The liberty guaranteed by the
Fourteenth Amendment embraces the liberty guaranteed by the First
Amendment. The Constitution does not only forbid governmental preference of
one religion over another. It also forbids the State to establish any formal
relationships between church and state. The required activities violated the
Establishment Clause of the First Amendment. The activities were religious
ceremonies. The fact that parents could have their children excused did not make
the practices constitutional. The majority cannot use the “machinery of the State
to practice its beliefs.”
Significance: Once again, the Court firmly maintained its position regarding the
coercing school students to participate in school-sponsored religious activities.
Relying on Barnette, the Court reasserted its principle that the state cannot
compel belief or the expression thereof.
~43~
Adler v. Duvall County
Nos. 98-2709, 98-2720 (11th Cir. May 2001)
Facts: Subsequent to its decision in Santa Fe ISD v. Doe, the United States
Supreme Court vacated the 11th Circuit Court of Appeals’ decision in Adler and
remanded for further consideration. Upon review, the 11th Circuit reaffirmed its
original decision and distinguished the case from Santa Fe. The Duval County
School Board had adopted a policy that allowed seniors to select a student of
their choice to deliver a graduation message. The content of the message was not
subject to monitoring or review by school officials.
Issue: “[w]hether the Duvall County school system’s policy of permitting a
graduating student, elected by her class, to deliver an unrestricted message of
her choice at the beginning and/or closing of graduation ceremonies is facially
violative of the Establishment Clause.”
Previous History: See Facts.
Holding: The Duvall County policy does not violate the Establishment Clause of
the First Amendment.
Reasoning: In their previous analysis under Weisman, the Court of Appeals held
that the policy did not violate the First Amendment. “School officials have no
power to direct that a message (let alone a religious message) be delivered at
graduation ceremonies, or control in any way the content of the message actually
to be delivered.” The state’s role in this instance does not turn “the student’s
private speech into state-sponsored speech.” The Court also rejected the
contention that the speech would “have the impermissible effect of coercing
unwilling listeners to participate in a state-sponsored religious exercise.” The
policy meets all criteria of the Lemon test. “The text of the policy did not reveal a
religious purpose.” “Duvall County’s policy is facially neutral and undeniably
evinces a secular purpose.” The Court pointed out that the Santa Fe policy
specifically referenced an invocation. Why is the Duvall County policy different
from the Santa Fe policy? (1) “The Duvall County policy does not contain any
restriction on the identity of the student speaker or the content of the message
that might be delivered.” (2) The Duvall policy does not invite and encourage
religious messages. Again, the Duvall policy contains no reference to an
invocation. “These important facts demonstrate why Santa Fe is distinguishable
from this case, and more particularly why the speech at issue here-unlike the
speech contemplated in the Santa Fe policy-cannot reasonably be described as
state-sponsored. These key facts also help illustrate why the speech permitted by
Duval County cannot reasonably be described as state ‘coercion’ of religion.”
Unlike Santa Fe, the Duvall policy does not involve a majoritarian vote. Students
in Duval County do not vote on “whether prayer, or its equivalent, should be
included in graduation ceremonies.” The Duvall policy does not turn private
student speech into state-sponsored speech. “The issue before us today is
~44~
extremely narrow: whether in light of Santa Fe we should alter our prior en banc
decision in this case. We conclude that the answer is not. Indeed, by its
reasoning Santa Fe reinforces the crucial point that ‘the total absence of state
involvement in deciding whether there will be a graduation message, who will
speak, or what the speaker may say combined with the student speaker’s
complete autonomy over the content of the message [means] that the message
delivered, be it secular or sectarian or both, is not state-sponsored.”’
Significance: Whether the Supreme Court will agree with the 11th Circuit’s
reinstatement of its original decision remains to be seen. This case may give
school systems the opportunity to craft carefully policies that allow studentinitiated speech at graduation exercise regardless of the content.
Agostini v. Felton
521 U.S. 203 (1997)
Facts: Previously in Aguilar, the Supreme Court had ruled that public school
districts could not deliver services to Title I students in religious schools.
Subsequently, the District Court had issued a permanent injunction against the
practice. Petitioners, the New York City school system, here are asking from
relief from the injunction because, in essence, they contend that First
Amendment principles have changed since the original decision. The Ball case
involved shared time in Grand Rapids, Michigan. It was a companion case to
Aguilar. The Ball case set forth the presumptions which the Court would
reconsider in this case.
Issue: Whether the New York City Schools are entitled to relief under Federal
Rule of Civil Procedure 60(b) from the permanent injunction and whether
providing services to Title I students in parochial schools violates the
Establishment Clause of the First Amendment.
Previous History: The District Court and the Court of Appeals denied relief from
the injunction issued pursuant to Aguilar.
Holding: Providing Title I services to students in religious schools does not
violate the Establishment Clause of the First Amendment.
Reasoning: The Zorbrest decision, permitting a speech interpreter for a student in
a religious school, and other decisions undermined the original decision in
Aguilar. The Court rejected its previous presumptions in Aguilar and Ball that
having public school teachers in parochial schools “will inevitably lead to
indoctrination,” that the “presence of public school employees on private school
premises creates a symbolic union between church and state,” that “any and all
public aid that directly aids the educational function of religious schools
impermissibly finances religious indoctrination,” and that the New York Title I
program fostered excessive entanglement “because public employees who teach
on the premises of religious schools must be closely monitored to ensure that
they do no inculcate religion.” “What has changed since we decided Ball and
Aguilar is our understanding of the criteria used to assess whether aid to religion
~45~
has an impermissible effect.” First, the Court rejects the presumption that having
public employees in religious schools “inevitably results in the impermissible
effect of state sponsored indoctrination or constitutes a symbolic union between
government and religion.” Second, the Court moves from the position that “all
government aid that directly aids the educational function of religious schools is
invalid.” The Court also makes it clear that having Title I teachers in religious
schools does not supplant remedial instruction and guidance and counseling
already being provided in religious schools. “It is clear that Title I services are
allocated on the basis of criteria that neither favor nor disfavor religion.” The
Court concludes that only excessive entanglement “runs afoul of the
Establishment Clause.”
Significance: Stare decisis does not prevent the Court from overruling a previous
decision when there are changes in the law.
Allen v. Casper
622 N.E.2d 367 (Ohio App. 8 Dist., 1993)
Facts: Parents of private elementary school students brought this suit after their
children were dismissed from the school. The students were enrolled at
Bethlehem Christian School. Prior to enrollment, the Allens had signed
enrollment papers in which they agreed to abide by school policies. One policy
said that the school could refuse to admit or could suspend any student who did
not cooperate with school policies. Furthermore, the policy read, “The high
standards and Biblical principles that our school holds apply to after school
hours as well. If any parent or student refuses to follow these standards, then
they place their privilege of attending B.C.S. in jeopardy.” Another policy
required the parents to “demonstrate a spirit of cooperation, and uphold the
student handbook.” The agreement also stipulated that the parents would not
complain to any other parents, but “with a prayerful Christian spirit, will register
only necessary complaints with the appropriate teacher and/or administrator.”
On two occasions, Kristen Allen reported that a boy had pulled up her dress and
“ran his hands across her panties.” On another occasion, she reported that a boy,
who had been involved in the first incident, did the same things to her. When the
parent complained after the initial report, the principal indicated that he would
“speak to the children concerning the matter” and would paddle the boys if they
had committed the deed. After speaking to the kindergarten boys, the principal
realized that they did not know they had done anything wrong. With regard to
the second incident, the principal investigated and paddled the boy. Mrs. Allen
became angry. She wanted to know what the principal had done to discipline the
boy. Invoking the school’s policy, the principal refused to give them the
information. The parents then went to Rev. Hlad, the pastor of the church that
sponsored the school, but did not seek a meeting with the board as required by
policy. Later in the year, Kristen reported that a boy had spit upon her. This
~46~
angered Ms. Allen and she again requested a meeting with the principal. Mrs.
Allen accused the principal of not being a Christian and working with the devil.
The school then asked the parents to withdraw the children.
Issue: Whether the contractual relationship between parents and private school
officials is binding provided there is no abuse of discretion on the part of the
school and school officials.
Previous History: The trial court granted summary judgment in favor of the
school. The Court of Appeals upheld the lower court.
Holding: The school did not abuse its discretion and, therefore, the contractual
relationship gives private school officials wide discretion in meeting their
educational and doctrinal responsibilities.
Reasoning: Private schools are governed by contractual agreements between the
schools and their patrons. “Because contracts for private education have unique
qualities, they are to be construed in a manner which leaves the school board
broad discretion to meet its educational and doctrinal responsibilities. Absent a
clear abuse of discretion by the school in the enforcement of its policies and
regulations, the courts will not interfere in these matters. The Allens failed to
produce any evidence that the school had clearly abused its discretion. The
principal, Mr. Staub, had responded promptly to the Allens’ complaints. The
Allens bypassed the required procedure and went directly to the minister of the
church that ran the school. Having accused Mr. Staub of not being a Christian
certainly made it difficult for them to continue working together. The Allens had
signed an agreement which shows that they knew their children could be
removed from the school if they did not follow required policies and procedures.
© J. Patrick Mahon, Ph.D., 2001
Significance: This case involves a private school. Educators need to understand
that private schools operate under contract law which puts them on a different
legal footing than public schools; however, private schools do not have
unfettered discretion. They cannot treat parents and students arbitrarily or
capriciously.
Barcheski v. Bd. Of Educ. of Grand Rapids Public
Schools
412 N.W.2d 296 (Mich. App. 1087)
Facts: Barcheski, a tenured teacher, was discharged from his duties. Two female
members of his driver education class attended a party the night before the
annual raft race. The students claimed that Barcheski had invited them to the
party. The two students smoked marijuana and drank beer. Barcheski took the
female students home. On the way, he “parked his automobile and had sexual
intercourse with her [one of the girls] in his automobile.” The Board found
sufficient evidence that Barcheski had invited the girls and that they had drunk
beer and smoked pot. They could not reach a conclusion on the charges related to
~47~
sexual intercourse with one of the girls. The other female student had changed
her testimony at the hearing.
Previous History: The Tenure Commission took additional testimony. Before the
Commission could render a decision its membership changed. A majority of the
new Commission then voted to reinstate Barcheski. The Kent County Circuit
Court reversed the Tenure Commission. On remand, the Tenure Commission
reversed itself and said that his dismissal was based on reasonable and just
cause. The Ingham Circuit Court affirmed the Tenure Commission’s ruling.
Issue: Whether the Tenure Commission’s findings as were “supported by
substantial, material, and competent evidence.”
Holding: The Court affirmed the decision of the Tenure Commission. Its findings
were based on substantial, material, and competent evidence.
Reasoning: Based on a review of the evidence, the Court concluded that
“petitioner invited at least one female student to the party.” The second finding
that the female students drank beer and smoked marijuana was also supported
by substantial evidence. The third finding that the petitioner took the female
students home in his car after the party was also based on substantial evidence.
Barcheski claimed that he was “never put on notice that taking a student home
by itself constituted a charge of wrongful conduct.” The Court ruled that “based
on petitioner’s own testimony, however, we believe that petitioner was, or
should have been, well aware that taking Mary, a young, intoxicated female
student home alone in his car constituted, by itself, grounds for discipline.”
Significance: Conduct such as that exhibited by this teacher can constitute
grounds for dismissal. Even where questionable party situations are not
involved, educators should be cautious about transporting students, especially
students of the opposite sex. If it is necessary to transport a student in an
emergency situation, the educator should make sure that another adult
accompanies them on all occasions.
Beeson v. Kiowa County School Dist. RE-1
567 P.2d 801 (Colo. App. 1977)
Facts: The Board had a policy that prohibited married students from
participating in extracurricular activities. Tammy Beeson, a married high school
senior, sought to participate on the girls’ basketball team. She had participated as
a freshman. During the following summer, she married and subsequently had a
child. Tammy claimed that denial of participation was interfering with her ability
to get a scholarship.
Issue: Whether the Board policy that prohibited married students from
participating in extracurricular activities violated the student’s Fourteenth
Amendment right to Equal Protection.
~48~
Previous History: The District Court upheld the Board policy. The Colorado
Court of Appeals reversed and remanded with instructions for the Court to
declare the Board policy unconstitutional.
Holding: The policy that prohibits married students from participating interferes
with a Colorado statute that holds that it is “declared public policy” of the state
“to foster and promote the marriage relationship.” “The creation of a marriage
relationship is a fundamental right in this jurisdiction.”
Reasoning: The discrimination created by the policy is not justified by the
Board’s interest in having married students focus on their basic education. The
Board policy, which is designed to discourage students from marrying,
contravenes the State law. The Board can have policies that establish academic
requirements for both married and unmarried students. Referencing the
scholarship issue, the Court noted that obtaining a scholarship could provide
further education, which would enhance the person’s ability to carry out family
responsibilities. The Court stated that there was evidence that a male student,
who had fathered a child, had been allowed to participate in extracurricular
activities. Finally, the case dealt strictly with the rights of married students. It did
not hinge upon the rights of students who had children.
Significance: Marriage is a suspect classification under Colorado law. The Board
could not establish sufficient reason to interfere with the rights of married
students to participate.
Berg v. Glen Cove City School Dist.
853 F.Supp. 651 (1994)
Facts: New York state had a law that required that students be immunized. The
Courts had ruled that the previous law that required membership in a
recognized religious organization was unconstitutional. New York than
amended the law to state that the parent or guardian had to “hold genuine and
sincere religious beliefs which are contrary to the practices [immunization]
herein required.” Enrolling their twin daughters in the schools, the Bergs
requested an exemption from the immunization requirements of the law. They
complied with the superintendent’s request for a statement of the religious
beliefs upon which their claim rested. Essentially, the Bergs stated that they had
derived their beliefs from their interpretation of the Hebrew Scriptures. The
superintendent denied their request for a waiver. The Bergs then filed suit
seeking declaratory relief, injunctive relief, and damages for the violation of their
constitutional rights.
Issue: Whether the plaintiffs were entitled to a preliminary injunction based on
their claim that the district violated their rights to freedom of religion and equal
protection when it denied them exemption from the public health law requiring
all children to be immunized before they are admitted to school.
Previous History: This is the trial court.
~49~
Holding: The Court granted declaratory relief because the Bergs were likely to
prevail on the merits of their case.
Reasoning: The Court concluded that the Bergs were likely to prevail on their
claims for declaratory and injunctive relief. While the Jewish faith does not
oppose immunizations, the Bergs established their case that their beliefs were
based on religious principles. The Court’s examination of medical records for the
Bergs for at least six years indicated they had practices their beliefs consistently.
Significance: This case establishes that States can restrict exemption for
immunizations to people who object because of sincere religious beliefs as
opposed to personal secular or philosophical beliefs. Absent a state law, local
boards cannot restrict students from school because they are not immunized.
Maack v. School Dist. of Lincoln (491 N.W.2d 341, 1992) establishes the right of the
State to require that students, who are not immunized, not attend school for a
period of time during an epidemic of an infectious disease. Having the students
in school where other students have measles is a danger to the health of the
students who have not been immunized.
Bethel School Dist. No. 403 v. Fraser
478 U.S. 675 (1986)
Facts: Respondent Fraser delivered a speech at a school election campaign in
which he used lewd language, which included blatant sexual innuendo, to
endorse a candidate. Approximately 600 14-year olds were present at the
assembly. Several teachers had advised Fraser not to deliver the speech. The next
day, Fraser admitted to the assistant principal that he had delivered the speech.
The school suspended Fraser for 3 days and prohibited him from delivering a
speech at graduation. The school system hearing officer, using the system’s
grievance procedure, upheld the suspension but reduced it to 2 days. The speech
was obscene as contained in the district policy: “Conduct, which materially and
substantially interferes with the educational process, is prohibited, including the
use of obscene, profane language or gestures.”
Issue: Whether the disciplining of Fraser by the school district for lewd and
obscene speech at a student assembly violated his First Amendment right to
Freedom of Speech and his Fourteenth Amendment right to Due Process.
Previous History: The U. S. District Court held that the school’s disciplinary
action violated Fraser’s First Amendment rights and that the school rule was
broad and overvague in violation of Due Process. The Court awarded damages,
attorney’s fees, and enjoined the district from prohibiting Fraser from delivering
a speech at graduation. Fraser, elected to give a speech, did deliver it at the
commencement ceremonies. The Court of Appeals held that Fraser’s speech was
indistinguishable from the armbands in Tinker. The Court rejected the district’s
argument that the speech was disruptive. The Court also rejected the district’s
contention that the district had the right to regulate the content of speech in
school-sponsored activities.
~50~
Holding: The Supreme Court reversed the lower Courts. The disciplinary action
taken by the district did not violate Fraser’s First Amendment or Fourteenth
Amendment rights.
Reasoning: First, the school has the responsibility to inculcate “habits and
manners of civility.” “Even the most heated political discourse in a democratic
society requires consideration for the personal sensibilities of other participants
and audiences.” The Court reaffirmed its opinion in T.L.O. and other decisions
that student rights are not coextensive with adult rights. “The process of
educating for citizenship is not confined to books, the curriculum, and the civics
class; schools must teach by example and the shared values of a civilized social
order.” The Court held that the extensive sexual innuendo in the speech was
offensive. Speech, which is directed toward children, is more subject to
regulation in order to protect minors. “A high school assembly or classroom is no
place for a sexually explicit monologue directed toward an unsuspecting
audience of teenage students. Accordingly, it was perfectly appropriate for the
school to dissociate itself to make the point to pupils that vulgar speech and lewd
conduct is wholly inconsistent with the ‘fundamental values’ of public school
education.” Finally, the Court held that the school rule had given sufficient
notice to Fraser that his speech would be inappropriate. Schools have to have
some flexibility in the rules they promulgate and they are not required to
specifically address every situation in which speech might be inappropriate.
Significance: This decision curbed the rights of students. After a period in which
student rights had become almost coextensive with the rights of adults, the Court
drew the line and gave school officials some latitude when it came to student
speech.
Bd. of Educ. of Westside Community Schools v.
Mergens
496 U.S. 226 (1990)
Facts: The Board of Education permitted students to join groups and clubs that
met on school premises during noninstructional time. Respondent Mergens
asked the school officials to allow her to form a Christian club. The school
officials denied her request because of the Establishment Clause and because
board policies required faculty sponsorship. When the board also denied
permission, the respondents brought suit. The respondents contended that the
denial of permission violated the Equal Access Act.
Issue: Whether the school district’s refusal to allow the respondent to form a
Christian club because of the Establishment Clause and board policies violated
the provisions of the Equal Access Act.
Previous History: The District Court concluded that all clubs at Westside were
curriculum related; therefore, the denial of permission was upheld. The Court of
Appeals reversed the District Court.
~51~
Holding: The Equal Access Act is constitutional.
Reasoning: Under the Act, a public school with a limited open forum “is
prohibited from discriminating against students who wish to conduct a meeting
within that forum on the basis of ‘religious, political, philosophical, or other
content of the speech at such meetings.’” A limited open forum “exists whenever
a public secondary school ‘grants an offering or an opportunity for one or more
noncurriculum related student groups to meet on school premises during
noninstructional time.’” Reviewing clubs and groups at Westside, the Court
concluded that the school did have noncurriculum related clubs, e.g. chess club,
scuba diving club. Westside receives federal aid and is subject to the provisions
of the Act. “In our view, a student group directly relates to a school’s curriculum
if the subject matter of the group is actually taught, or will soon be taught, in a
regularly offered course; if the subject matter concerns the body of courses as a
whole; if participation in a group is required for a particular course; or if
participation results in academic credit.” The Court ruled on the statute and did
not address First Amendment issues. The fact that the Act prohibits
discrimination on the basis of “political, philosophical, or other” speech as well
as religious speech meets the “secular purpose prong of the Lemon test.” The Act
does not advance religion because “there is a crucial difference between
government speech endorsing religion, which the Establishment Clause forbids,
and private speech endorsing religion, which the Free Speech and Free Exercise
Clauses protect.” School officials cannot participate and the groups must meet
during noninstructional time. There is no official endorsement of the clubs. There
is no excessive entanglement because school officials cannot participate. The
administration may assign a faculty member for custodial purposes.
Significance: This was the first legal challenge to the Equal Access Act. It passed
constitutional muster. Christian or other religious clubs can meet during
noninstructional time. These clubs have all the same prerogatives as other clubs,
including use of bulletins boards, school announcements, and recognition in
school publications. School officials cannot participate in the meetings. The
meetings are to be student-led and student-initiated. Regular participation by
representatives from churches would contravene the provisions of the Act.
Bd. of Education, Island Trees Union Free School Dist.
No. 26 v. Pico
457 U.S. 853 (1982)
Facts: Some Board members had attended a meeting at which certain books were
deemed objectionable. Subsequently, the Board ordered that the listed books be
removed from the school libraries as improper for students. The Board appointed
a Book Review Committee consisting of 4 parents and 4 staff members to read
the books and recommend whether the books should be retained, “taking into
account the books’ ‘educational suitability,’ ‘good taste,’ ‘relevance,’ and
~52~
‘appropriateness to age and grade level.’” The committee recommended that 5 of
the books be retained and that 2 others be removed. The Board rejected the
committee’s recommendation and decided that only 1 book should be returned
to the library.
Issue: Whether the First Amendment imposes any limitations upon the
discretion of petitioners to remove library books from the Island Trees High
School and Junior High School and, if so, whether the affidavits and other
evidentiary materials raise a genuine issue of fact whether the petitioners might
have exceeded these limitations.
Previous History: The District Court, rejecting the First Amendment claims,
granted summary judgment in favor of the petitioners. The Court held that the
Board acted not on “religious principles but on its conservative educational
philosophy and on its belief that the books removed from the school library and
curriculum were irrelevant, vulgar, immoral, and in bad taste, making them
educationally unsuitable for the district’s junior and senior high school
students.” The Court of Appeals reversed the judgment of the District Court and
remanded it for trial on the respondents’ allegations. The Supreme Court granted
certeriori.
Holding: The Court held that the Board had made its decision to remove the
books on constitutionally impermissible grounds and that the evidentiary
materials raised genuine issues as to whether the Board had exceeded its
constitutional powers.
Reasoning: The Court reviewed its long history of deferring to Boards. It
carefully noted that the books were library books. They were not required
reading. They were also optional. This case does not involve the acquisition of
books. School boards have broad discretion; however, Boards cannot trammel
the constitutional rights of students. Citing Barnette, the Courts said, “We have
necessarily recognized that the discretion of States and local school boards must
be exercised in a manner that comports with the transcendent imperatives of the
First Amendment.” The Court examined Tinker, Barnette and Epperson to examine
the constitutional right of students. Even with the special requirements of schools
and school districts, First Amendment rights are available to students. The
students have the right to exchange and receive information. Students cannot
exercise their rights unless they have the right to receive ideas. The Board does
not have unfettered discretion to remove books. The Board’s discretion “may not
be exercised in a narrowly partisan or political manner.” “In brief, we hold that
school boards may not remove books from library shelves simply because they
dislike the ideas contained in those books and seek by their removal to ‘prescribe
what shall be orthodox in politics, nationalism, religion, or other matters of
opinion’ [Barnette].’” The Court addressed the second issue and decided that the
evidentiary materials raised a genuine issue of fact as to whether the Board had
exceeded constitutional limitations. The fact that the Board had exceeded its
constitutional powers foreclosed summary judgment.
~53~
Significance: Boards of Education do not have unlimited discretion to remove
books previously placed on library shelves. The issue is different, within
constitutional limits, when it comes to deciding which books to place on library
shelves. Common practice is to have system and local school media committees
that decide on which materials to place in libraries. Boards are well advised to
have procedures in place for dealing with complaints about instructional
materials and library materials.
Bd. of Regents of State Colleges v. Roth
408 U.S. 564 (1972)
Facts: Roth had been hired on a one-year contract at Wisconsin State University–
Oshkosh. He was informed that he would not be rehired for the following year.
Roth had no right to continued employment under Wisconsin law. Wisconsin
statues provided that an employee could acquire tenure as a permanent
employee only after having served for four years under year-to-year contracts.
Employees who gain tenure continue their employment “during efficiency and
good behavior.” Roth claimed that his First Amendment rights were being
violated. He alleged that he was being nonrenewed because he has spoken out
against the University administration. He also contended that his Fourteenth
Amendment rights were being violated because the University officials had not
given him reasons for his nonrenewal and an opportunity for a hearing.
Issue: Whether the respondent had a constitutional right to a statement of
reasons and a hearing on the University’s decision not to rehire him for another
year.
Previous History: The District Court granted summary judgment for the
respondent. The Court of Appeals affirmed.
Holding: Roth did not have a right to due process when the University was
nonrenewing his contract after one year of service.
Reasoning: Because of the District Court decision, the free speech issue was not
before the Court. The respondent would have a right to due process if the
nonrenewal implicated his liberty and/or property interests. Liberty “denotes
not only merely freedom from bodily restraint but also the right of the individual
to contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, to establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally to enjoy those
privileges long recognized . . . as essential to the orderly pursuit of happiness by
free men.” (citing Meyer v. Nebraska) The University did not damage his liberty
interests because they “did not make any charge against him which would
damage his standing and associations in the community.” “In the present case,
however, there is no suggestion whatever that the respondent’s ‘good name,
reputation, honor, or integrity’ is at stake.” Nor did the University impose any
stigma upon him which might foreclose his freedom to gain other employment.
~54~
“Protection of property is a safeguard of the security of interests that a person
has already acquired in specific benefits.” “To have a property interest in a
benefit, a person clearly must have more than an abstract need or desire for it.”
Property interests are created by state law. Roth had no property interest in
continued employment. The lower court should not have granted summary
judgment because the respondent had shown no liberty or property interest. The
case was remanded for further proceedings consistent with this opinion.
Significance: Roth clarified the due process rights of employees who do not have
tenure.
Boroff v. Van Wert City Bd. of Educ.
2000 FED App. 0249P (Cert. Den. March 2001, 6th Cir.)
Facts: The plaintiff brought suit under 42 U.S.C. §1983 alleging violations his of
First and Fourteenth Amendment rights. The student wore a series of Marilyn
Manson T-shirts to school. The school dress code read, “clothing with offensive
illustrations, drugs, alcohol, or tobacco slogans . . . are not acceptable.” The
plaintiff was told that he could not attend school wearing the Marilyn Manson Tshirts.
Issue: Whether schools can prohibit students from wearing clothing that
promotes “values that are so patently contrary to the school’s educational
mission.”
Previous History: The District Court refused to grant a temporary restraining
order and permanent injunction and granted summary judgment for the school
district.
Holding: When clothing contains “symbols and words that promote values that
are so patently contrary to the school’s educational mission, the School has the
authority, under the circumstances of this case, to prohibit those T-shirts.”
Reasoning: The Court applied the Tinker, Fraser, and Hazelwood tests to the
analysis of this case. Tinker established that students have constitutional rights.
Fraser prohibits vulgar and obscene speech. Hazelwood establishes that students’
First Amendment rights are subject to the special circumstances of the school
setting. In Tinker, the Court dealt with issues weightier than dress and
appearance. Schools can prohibit conduct that poses a substantial threat to the
school environment. Mere interest in avoiding controversy does not meet
constitutional muster. Fraser established that students’ rights are not coextensive
with those of adults. Hazelwood authorized school officials to regulate student
expression if they have “legitimate pedagogical concerns.” The Court analyzed
this case in this manner, “The way to analyze this is to first determine whether
the speech is ‘vulgar or offensive.’ If it is, then Fraser allows banning it, and the
analysis is complete. Otherwise, apply Tinker and examine if there is a threat of
substantial disruption that would allow the school to ban the speech.” School
officials found the T-shirt to be “offensive because the band promotes destructive
~55~
conduct and demoralizing values that are contrary to the educational mission of
the school.” School officials also cited the drug user influence of the rock
performer as another reason for banning the T-shirt. Under Fraser, school officials
have the “authority to determine ‘what manner of speech in the classroom or
school is inappropriate.’” The Court rejected the plaintiff’s contention that the
school officials had singled out the religious content of one of the T-shirts. “. . .
the record demonstrates that the School prohibited Boroff’s Marilyn Manson Tshirts generally because this particular rock group promotes disruptive and
demoralizing values which are inconsistent with and counter-productive to
education.”
Significance: School officials can regulate speech that advocates matters that are
contrary to the values the school strives to promote. The U. S. Supreme Court
refused to grant certiorari in this case in March 2001.
Bown v. Gwinnett County School Dist.
No. 95-9595 (1997)
Facts: In 1996, the Georgia Legislature adopted the Georgia’s Moment of Quiet
Reflection in Schools Act. The appellant brought this action seeking declaratory
judgment that the Act was unconstitutional because it violated the Establishment
Clause of the First Amendment. The Act was intended to provide a moment of
quiet reflection for reflection in “today’s hectic society.” Bown, a teacher at South
Gwinnett High School, objected to the moment of quiet reflection. He wrote a
letter to the superintendent stating that he resented the intrusion of the General
Assembly into his classroom and asked for guidance. Bown also stated that he
would not know what to do if students engaged in audible prayer during the
period of quiet reflection. Bown was given a copy of the school system’s
Administrative Bulletin which set forth the provisions for implementing the
moment of quiet reflection in the school district. Inter alia, the Bulletin specifically
stated, “We should not allow or tolerate any coercion or overbearing by some
students to force other students to pray. Nevertheless, we should be tolerant of
non-disruptive, non-sectarian, non-proselytizing, student-initiated prayer so long
as it does not occur during the moment of silent reflection; otherwise, it will not
be a moment of quiet reflection.” After a meeting with principal where Bown
continued to state his objections, the principal and superintendent decided that
the principal should use a standard announcement to introduce the moment of
quiet reflection in order to insure that it would occur in an uniform way each
day. When the principal made the announcement on August 22, 1994, Bown told
his students, “You may do as you wish. That’s your option. But I’m going to
continue with my lesson.” Later in the day, the superintendent instructed Bown
to comply with the moment and gave him overnight to reconsider his position.
The next day, Bown informed the principal that he could not comply and then
left the campus. The Board subsequently terminated his contract.
~56~
Issue: Whether the Act requiring a Moment for Quiet Reflection violated the
Establishment Clause of the First Amendment.
Previous History: The District Court held that the Act did not violate the
Establishment Clause.
Holding: The Act does not violate the Establishment Clause of the First
Amendment.
Reasoning: The Court applied the Lemon Test. First, the Act had a secular
purpose. The Court examined the legislative history and language of the Act. It
was clear that the legislature intended to create a “Moment for Quiet Reflection”
and not a time for prayer. The Act does not authorize any affirmative action. It
simply states that the Act shall not be construed to deny students the
opportunity for “student initiated voluntary school prayers at schools or school
related events which are nonsectarian and nonproselytizing in nature.” The
Court noted that this case is different from Jaffree because the history of Jaffree
indicates that the Alabama statute was an attempt to return prayer to public
schools. The Georgia Act does not advance or inhibit religion because it does not
“convey a message of endorsement or disapproval of religion.” The manner in
which the school system implemented the Act does not have the primary effect
of either advancing or inhibiting religion. The Act “does not involve
impermissible government coercion of students to engage in religious activity.”
Finally, there is no excessive entanglement. The Act does not require teachers to
lead or participate in prayers. The fact that teachers would have to deal with
students who utter audible prayers during the moment does not constitute
excessive entanglement.
Significance: The Court clearly distinguishes the Act as being different from
Acts which are implemented with express purpose of returning religion to the
classroom. Students may pray in schools provided that they do it in a
nondisruptive manner outside instructional time, e.g. before lunch or even
during lunch. The Supreme Court has held fast on school-sponsored prayers at
school events which are endorsed by school officials and which coerce
expression.
Brown v. Bd. of Educ. of Topeka
347 U.S. 483 (1954)
Facts: This decision consolidated cases from Kansas, South Carolina, Virginia,
and Delaware. A companion case, Boling v. Sharpe, dealt with the same issue in
the District of Columbia, but under the Fifth Amendment. The plaintiffs
contended that the education being received under Plessy v. Ferguson was not
equal and could not be made equal.
Previous History: The District Court in Kansas had denied relief. In the South
Carolina case, the District Court denied the requested relief; however, the Court
did order equalization of the facilities. On remand, the Court found that
~57~
“substantial equality had been achieved.” In the Virginia case, the Court denied
the requested relief; however, the Court ordered equalization in physical plants,
curricula, and transportation. In the Delaware case, the Delaware Court of
Chancery had granted admission to schools previously attended only by white
students on the grounds that the black schools were “inferior with respect to
teacher training, pupil-teacher ratio, extracurricular activities, physical plant, and
time and distance involved.”
Issue: Whether “separate but equal schools” for blacks, “even when the physical
facilities and other ‘tangible’ factors may be equal,” deprive black students of
equal protection under the law.
Holding: Separate but equal schools for blacks are “inherently unequal.”
Reasoning: After Plessy v. Ferguson, the Court had ruled in two cases (Cumming
v. County Bd. Of Educ. and Gong Lum v. Rice) that separate but equal public
schools did not violate the provisions of the Fourteenth Amendment. More
recently, the Court had ruled in the cases of graduate students in law and
education (Missouri ex rel Gaines v. Canada, Sipuel v. Oklahoma, Sweatt v. Painter,
and McLaurin v. Oklahoma State Regents), that black students had been denied
specific benefits enjoyed by white students. The states in question had failed to
provide separate but equal graduate facilities for black students. “Today
education is perhaps the most important function of state and local governments.
Compulsory school attendance laws and great expenditures for education both
demonstrate our recognition of the importance of education in a democratic
society.” Citing the finding of the Kansas Court, the Court said, “Segregation of
white and colored children in public schools has a detrimental effect upon
colored children. The impact is greater when it has the sanction of law; for the
policy separating the races is usually interpreted as denoting the inferiority of the
Negro group.” “We conclude that in the field of public education the doctrine of
‘separate but equal’ has no place. Separate educational facilities are inherently
unequal. Therefore, we hold that the plaintiffs and others similarly situated for
whom the actions have been brought are, by reason of the segregation
complained of, deprived of the equal protection of the laws guaranteed by the
Fourteenth Amendment.” The Court, recognizing the complexities involved in
desegregation in these various states, gave the states and their attorneys general
time to submit further arguments which would help the Court formulate decrees
for desegregating schools.
Note: Brown v. Bd. Of Educ., 349 U.S. 294 (Brown II, 1955), called for full
implementation of the constitutional principles set forth in Brown I. Courts were
to determine whether school districts were making good faith efforts at
implementation. Courts were to “require that the defendants make a prompt and
reasonable start toward full compliance.” Except for Delaware, the cases were
remanded for orders and decrees consistent with this opinion.
Significance: Brown and its progeny ended de jure segregation in public schools;
however, it took a long time for the promise of Brown to be realized.
~58~
Canady v. Bossier Parish School Bd.
No. 99-313318 (5th Cir. 2001)
Facts: The School Board adopted a policy, consistent with state law, that required
students to wear uniforms. Parents brought suit claiming that the policy violated
“their children’s First Amendment rights to free speech, failed to account for
religious preferences, and denied their children’s liberty interest to wear clothing
of their choice in violation of the Fourteenth Amendment.”
Issue: Whether school officials, pursuant to state law, can require students to
wear uniforms without violating the students’ rights to free speech guaranteed
by the First Amendment.
Previous History: The District Court granted summary judgment in favor of the
School Board.
Holding: The Court held that it was up to the School Board to determine the
most “effective way to educate our nation’s youth.” The uniform policy furthers
the education of youth.
Reasoning: The Court first determined whether a person’s choice of clothing
“qualifies as speech protected by the First Amendment.” The Court disagreed
with the lower Court’s determination that clothing and hair length were
“essentially the same for purposes of constitutional protection.” Distinguishing
clothing from hair length issues, the Court stated that “an individual’s choice of
attire may also be endowed with sufficient levels of intentional expression to
elicit First Amendment shelter.” Does the choice of clothing represent
communicative intent to give a discrete message or is it simply a matter of
personal preference? Second, is it likely that those who viewed it would
understand the message? Clothing is connected with intentional expression on
many levels. (1) It may function as pure speech. (2) “Clothing may also
symbolize ethnic heritage, religious beliefs and political and social views.” (3)
Students often choose clothing to represent social groups to which they belong
such as school teams or their “general attitudes toward society and the school
environment.” Entering the second stage of analysis, the Court noted that
constitutional protections are not without limits in our public schools. The Court
interprets the Supreme Court as establishing three categories of student speech
regulations. (1) According to Tinker, “the first category involves regulations
directed at specific student viewpoints.” (2) The next category, according to
Fraser and Chandler, is the regulation of speech that is lewd, obscene, vulgar, or
plainly offensive. (3) Finally, schools can regulate speech that is related directly
to school-sponsored activities. Under Kuhlmeier, a school need not “affirmatively
promote particular student speech.” School officials may regulate speech if “their
actions are reasonably related to legitimate pedagogical concerns.” If regulation
is unrelated to any political viewpoint, then a lower standard applies to
regulation by school officials. “Thus, the School Board’s uniform policy will pass
~59~
constitutional scrutiny if it furthers an important or substantial government
interest; if the interest is unrelated to the suppression of student expression; and
if the incidental restrictions on First Amendment activities are no more than is
necessary to facilitate that interest.” The Board enacted the uniform policy in an
effort to improve student achievement and to reduce the number of disciplinary
infractions. It was not enacted, therefore, to suppress student speech. The Court
declined to determine the liberty interest issue raised by the plaintiffs. The Court
stated that the financial burden argument raised by the plaintiffs did not raise a
cognizable constitutional interest. In fact, uniforms were available “at
inexpensive retail stores” and may cost less than other clothing. In addition, the
Court noted that various organizations provide uniforms for students who are
less fortunate.
Significance: Again, this case establishes the authority of School Boards to make
rules reasonably related to educational purpose, such as improving academic
performance and reeducating disciplinary infractions.
Carey v. Piphus
435 U.S. 247 (1978)
Facts: The cases of two students –Piphus and Brisco – were consolidated when
their parents filed an action under 42 U.S.C. §1983 alleging that the students had
been suspended without procedural due process. Piphus claimed $3,000 in
damages and Brisco claimed $5,000. The high school principal caught Piphus and
another student passing a “funny-shaped cigarette.” The principal accused
Piphus of smoking marijuana, took him to the assistant principal’s office, and
instructed the AP to suspend him 20 days for using drugs at school. A meeting
was held with Piphus and his mother on the next day but was not productive.
Brisco was a middle school student who insisted on wearing an earring which he
said connoted Black pride and was not a gang symbol. He was suspended for 20
days for violating the rule related to gang apparel. Title 42 U.S.C. §1983 is
derived from the Civil Rights Act of 1871 and provides:
Every person, who under the color of any statue, ordinance,
regulation, custom, or usage, of any State or Territory, subjects or
causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws, and shall be liable to the party injured in any action at law,
suit in equity, or other proper proceeding for redress.
Issue: Whether students who are suspended without due process are entitled to
nominal damages when no actual injury has been proved.
Previous History: The District Court held that both students had been
suspended without procedural due process. The District Court, stating that
school officials were not entitled to qualified immunity under Wood v. Strickland
~60~
because they knew or should have known they were violating the constitutional
rights of students, refused to award damages. The Court of Appeals reversed
and remanded. The District Court should have granted declaratory and
injunctive relief. The Appeals Court also held that, if the District Court found
that the respondents’ suspensions were justified, they would be able to recover
substantial non-punitive damages.
Holding: The Supreme Court held that a plaintiff must prove that he was
actually injured before he may recover substantial non-punitive damages. Absent
any proof, the plaintiff may recover only nominal damages.
Reasoning: The basic purpose of §1983 damage awards is to compensate persons
for injuries caused by the deprivation of constitutional rights. The Court sees no
difficulty in producing evidence that mental and emotional distress actually was
caused by a denial of due process. If the respondents’ suspensions were justified,
they were still deprived of due process. In this instance, nominal damages
represent the appropriate remedy.
Significance: This case deals with procedural issues. Nominal damages equals
$1. The amount is not as significant as the fact that the board had a judgment
against it for denial of constitutional rights. The decision does prohibit awarding
substantial judgments when the suspension of the student would have been
justified if due process had been accorded.
Castorina v. Madison County School Board
6th Cir. 2001
Facts: Two high school students in Kentucky wore Hank Williams concert Tshirts to school to commemorate Hank Williams, Sr.’s birthday and to express
their Southern Heritage. The Confederate flag was on the shirts. The students
were suspended twice for wearing the shirts. They wore them when they
returned to school after their first suspension. They were suspended pursuant to
a Board policy which prohibited clothing which “is obscene, sexually suggestive,
disrespectful, or which contains slogans, words or in any way depicts alcohol,
drugs, tobacco, or any illegal, immoral, or racist implication.”
Issue: Whether (1) wearing the Confederate flag T-shirts qualifies “as the type of
speech covered by the First Amendment” and whether such speech is “protected
given the special rules governing the schools’ authority to regulate student
speech.
Previous History: The District Court granted summary judgment for the School
District.
Holding: “Because the plaintiffs’ intended expression was both a
commemoration of Hank William, Sr.’s birthday as well as a statement affirming
~61~
the plaintiffs’ shared southern heritage, their decision to wear the Hank Willams
T-shirts constitutes speech falling within the First Amendment.”
Reasoning: Constitutional rights are not unlimited. Could the School Board
justify the infringement of the students’ speech rights? The Court reviewed
Tinker, Fraser, and Hazelwood. The Tinker standards apply to this case. The Court
also reviewed two Circuit Court decisions related to the Confederate flag. Both
Melton v. Young (465 F.2d 1332, 6th Cir. 1972) and West v. Derby Unified School Dist.
No. 260 (206 F.3d 1358, 10th Cir. 2000) permitted school officials to ban
Confederate flags. Following Tinker, the Court said, “Though schools have the
authority to set regulations pertaining to the length or skirts or hair, the Court
held that there was no basis for a policy that punished ‘silent, passive expression
of opinion, unaccompanied by any disorder or disturbance on the part of
petitioners.’” Undifferentiated fear of disruption is not sufficient when it comes
to curbing the exercise of constitutional rights. Absent forecasting substantial
disruption, the school cannot ban “certain racial viewpoints.” “The School Board
cannot single out Confederate flags for special treatment while allowing other
controversial racial and political symbols [Malcolm X T-shirts were not banned.]
to be displayed.” In both Melton and West, there had been incidents of a racial
nature that led to forecasting substantial disruption if students wore or exhibited
the Confederate flag. The Court set the guidelines for the District Court factfinding on remand. “If the students’ claims regarding the Malcolm X inspired
clothing (i.e. that other students wore this type of clothing and were not
disciplined) and their claims that there were no prior disruptive altercations as a
result of the Confederate flags are found credible, the court below would be
required to strike down the students’ suspension as a violation of their rights of
free speech as set forth in Tinker. In addition, even if there had been racial
violence that necessitates a ban on racially divisive symbols, the school does not
have the authority to enforce a viewpoint-specific ban on racially sensitive
symbols and not others.”
Significance: The wearing and display of the Confederate flag continues to be a
source of litigation in schools. Administrators are cautioned to apply sound legal
principles when making decisions in such cases. Absent the ability to forecast
substantial disruption, usually based on a recent history of racial unrest in the
school, administrators should not discipline students for wearing or otherwise
displaying the Confederate flag.
Cedar Rapids Community School Dist. v. Garret F.
(96-1793, March 1999)
Facts: Garret F. suffered a spinal injury in a motorcycle accident that left him
paralyzed from the neck down. Garret was on a ventilator which required
someone to attend to his needs during the school day. Garret’s parents asked the
school district to provide a person who could make sure that Garret’s ventilator
~62~
functioned properly during the school day. The district refused to provide the
service. An Administrative Law Judge (ALJ) ruled that IDEA required that the
district provide these services for Garret as “related services.”
Previous History: The District Court and the Court of Appeals upheld the
decision of the ALJ.
Issue: Whether providing a full-time nurse to take care of Garret’s ventilatorrelated needs is required under the “related services” provision of IDEA.
Holding: IDEA, under “related services,” requires the school district to provide a
person who can assist Garret during the school day.
Reasoning: The Court reviewed IDEA and the provision for “related services.”
The decision of the ALJ was consistent with the decision in Irving ISD v. Tatro
and the “overall statutory support scheme.” Related services “broadly
encompasses those supportive services that ‘may be required to assist a child
with a disability from special education.’” The services required are not “medical
services” under IDEA. Tatro has a two-part test: Are the services supportive
services which are required if the student is to attend school? If the services can
be provided by a layperson or nurse (as opposed to a physician), then they are
not medical services. The District contended, among other things, that the
continuous care placed an undue financial burden on it. The Court ruled that no
such exception was noted in IDEA. “This case is about whether meaningful
access to public schools will be assured, not the level of education that a school
must finance once access is attained. It is undisputed that the services at issue
must be provided if Garret is to remain in school. Under the statute, our
precedent, and the purposes of IDEA, the District must fund such ‘related
services’ in order to help guarantee that students like Garret are integrated into
the public schools.”
Significance: School districts are required to provide related services to special
education students.
Chandler v. McMinnville School Dist.
978 F.2d 525 (1992)
Facts: The school district teachers went on strike. Two students, whose fathers
were striking teachers, wore and distributed buttons which made references to
“scabs” after the district hired replacement teachers. On several occasions, school
administrators asked the students to remove the buttons even though a teacher
had stated that they had caused no disruption in class. The students then
brought legal action claiming that the “school officials’ reasons for requesting
removal of the buttons were false and pretextual, and therefore violated their
First Amendment rights.” The suit also alleged that other students who had
worn buttons had not been asked to remove them.
~63~
Issue: Whether, absent any disruption, school officials can require students to
remove buttons which contain derogatory statements about replacement teachers
during a strike.
Previous History: The District Court dismissed the suit for failure to state a
claim.
Holding: Given the conditions in this case, school officials cannot require
students to remove buttons which contain derogatory statements about
replacement teachers during a stike.
Reasoning: The Court, relying on Tinker, Fraser and Hazelwood, acknowledged
that students have constitutional rights but that their rights are not coextensive
with those of adults. Nor does the school have to tolerate speech that is
“inconsistent with the school’s ‘basic educational mission.’” The Court then
turned to Hazelwood for an interpretation of the earlier Tinker and Fraser cases.
“The Hazelwood Court declined to apply Tinker, holding instead that ‘the
standard articulated in Tinker for determining when a school may punish student
expression need not also be the standard for determining when a school may
refuse to lend its name and resources to the dissemination of student expression.’
The Court then validated discretionary editorial control by school officials over
the school-sponsored newspaper ‘so long as their actions are reasonably related
to legitimate pedagogical concerns.’” The present Court distinguished three
distinct scenarios. (1) When speech is “vulgar, lewd, obscene or plainly
offensive,” school officials may curb it without showing that it occurred during a
school-sponsored event or threatened substantial disruption. (2) When speech
might be reasonably interpreted to bear the imprimatur of the school, school
officials have greater latitude in regulating such speech. (3) Finally, when speech
is not plainly offensive and does not bear the imprimatur of the school, school
officials have to be able to forecast substantial disruption. The buttons were not
lewd, obscene, or plainly offensive. A reasonable person would not conclude that
they bore the imprimatur of the school. Therefore, the Tinker standard does apply
in this case.
Significance: Given the analysis in this case, school officials must make carefully
drawn distinctions when they analyze issues involving the First Amendment and
speech.
Chandler v. Siegelman
11th Cir. 2000
Facts: Initially, this case was Chandler v. James. James and Siegelman are the
Alabama governors as this case runs its course. Alabama had passed a statute
which permitted “non-sectarian, non-proselytizing, student-initiated, prayer,
invocations and benedictions during compulsory or non-compulsory schoolrelated assemblies, sporting events, graduation ceremonies and other school-
~64~
related events.” Michael Chandler, a vice-principal in the DeKalb County school
system, filed this suit on behalf of his son.
Issue: Whether the U. S. Supreme Court’s ruling in Doe v. Santa Fe ISD vacates
the Circuit Court of Appeals’ decision in Chandler I. The Circuit Court in Chandler
I had ruled on this issue: “Whether the district court may constitutionally enjoin
DeKalb from permitting student-initiated religious speech in its schools.”
Previous History: The District Court granted summary judgment in favor of the
plaintiffs. The District Court also issued a Supplemental Order and Opinion
which contained its findings of fact. The District Court also held in a
Memorandum Opinion and Order that “DeKalb had engaged in unconstitutional
officially organized or sponsored religious activities, and granted summary
judgment to the Chandlers.” The District Court also “appointed a monitor to
oversee the enforcement of the Permanent Injunction.” Chandler I considered
only that portion of the Permanent Injunction which prohibited the school
district from “aiding abetting, commanding, counseling, inducing, ordering, or
procuring … school organized or officially sanctioned religious activity in the
schools including, but not limited to, vocal prayer, Bible and devotional or
scriptural readings, distribution of religious materials, texts, or announcements,
and discussions of a devotional or inspirational nature, in school or at schoolrelated events, to included assemblies, sporting events, and graduation
ceremonies.” DeKalb knew that it could not prescribe prayer. . . . Furthermore,
the prohibition applies to bar not only school personnel from leading or
participating in such public or vocal prayer or other devotional speech or Bible
reading, but also requires school officials to forbid students or other private individuals
from doing so while in school or at school-related events.” This is the part of the
injunction which the School District appeals.
Holding: Chandler I held that the school system “cannot constitutionally prohibit
students from speaking religiously.” On remand from the U. S. Supreme Court,
the Circuit Court held that Santa Fe “condemns school sponsorship of student
prayer. Chandler condemns school censorship of student prayer.” The Circuit
Court reinstated its judgment in Chandler I on remand from the Supreme Court.
Reasoning: Chandler I reasoned that the First Amendment prohibits the state and
its agents from establishing religion. Nor may the state use private “parties as
surrogates to accomplish what the state cannot do.” “When the state commands
religious speech, it steps over the Constitution to establish religion.” The Court
distinguished permitting religious speech from requiring religious speech. “The
suppression of student-initiated religious speech is neither necessary to, nor does
it achieve, constitutional neutrality toward religion. . . . The discriminatory
suppression of student-initiated religious speech demonstrates not neutrality but
hostility toward religion.” “Because genuinely student-initiated religious speech
is private speech endorsing religion, it is fully protected by both the Free Exercise
and the Free Speech Clauses of the Constitution.” “The Constitution does not
require a complete separation of church and state such that religious expression
~65~
may not be tolerated in our public institutions. In fact, ‘it affirmatively mandates
accommodation, not merely tolerance, of all religions, and forbids hostility toward
any.’” Those who do not like or agree with a student’s private religious speech
are free not to listen. “Accommodation of religious beliefs we do not share is,
however, a part of everyday life in this country.” In Chandler II, the Court of
Appeals states that the “Establishment Clause of the First Amendment prohibits
a school district from taking affirmative steps to create a vehicle for prayer to be
delivered at a school function.” Santa Fe held that “not every message delivered
under such circumstances is the government’s own.” Santa Fe recognizes a
distinction between government speech endorsing religion and private speech
endorsing religion. “Private speech endorsing religion is constitutionally
protected – even in school. Such speech is not the school’s speech even though it
may occur in school. Such speech is not constitutionally coercive even though it
may occur before non-believer students.”
Significance: This case, like Adler v. Duvall County, distinguishes a Circuit Court
decision from a decision of the U. S. Supreme Court. The Supreme Court refused
to grant certiorari when the decision of the Circuit Court in Chandler II was
appealed. What are the situations where students may initiate private religious
speech at school?
Cleveland Bd. Of Educ. v. LaFleur
414 U.S. 632 (1974)
Facts: Pregnant school teachers from Cleveland, Ohio and Chesterfield County,
Virginia initiated these actions. The appellants contended that the mandatory
requirements of both systems’ maternity leave rules violated their rights under
the Fourteenth Amendment. Cleveland’s rules required a teacher to take unpaid
maternity leave 5 months before expected childbirth with notice required at least
2 weeks before departure. The teacher could not return to work until the next
regular semester after the child was 3 months old. Chesterfield County’s rules
required the teacher to leave at least 4 months, with notice required at least 6
months, before expected childbirth. The teacher could return no later than the
first day of the school year after the date she is declared eligible to return to
work. Both sets of rules required a physician’s certification of fitness to return to
work.
Previous History: In the Ohio case, the District Court denied the plaintiffs’
request for relief. The Court of Appeals reversed. In the Virginia case, the district
Court held that the rules violated the Equal Protection Clause of the Fourteenth
Amendment. The Court of Appeals upheld the constitutionality of the Board
rules.
Issue: Whether Boards of Education may set arbitrary dates for teachers to
discontinue employment before childbirth and also set arbitrary dates
prescribing when teachers may return to work after childbirth.
~66~
Holding: “The mandatory termination provisions of the Cleveland and
Chesterfield County maternity regulations violate the Due Process Clause of the
Fourteenth Amendment, because of their use of unwarranted conclusive
presumptions that seriously burden the exercise of protected liberty. For similar
reasons, we hold the three-month return provision of the Cleveland rule
unconstitutional.”
Reasoning: The Court began by saying that “this Court has long recognized that
freedom of personal choice in matters of marriage and family life is one of the
liberties provided by the Due Process Clause.” “…overly restrictive maternity
leave regulations can constitute a heavy burden on the exercise of these protected
freedoms.” Reviewing the Boards’ arguments that the rules were necessary to
provide for the continuity of instruction, the Court held that cutoff dates that
were much later would serve the same purpose. In fact, these regulations can
adversely impact continuity of instruction. The rules would keep partially
incapacitated teachers out of the classroom; however, these rules sweep too
broadly. The Court will not accept rules which are based on irrebuttable
presumptions. The rules presume that all teachers are incapacitated to teach at
the same point in their pregnancy. Continuity of instruction and capability to
perform duties upon return cannot justify the return provisions of the rules
either. The Cleveland rule which required a 3-month wait prior to returning to
the classroom is unconstitutional. “We perceive no such constitutional infirmities
in the Chesterfield County rule. In that school system, the teacher becomes
eligible for re-employment upon submission of a medical certificate from her
physician; return to work is guaranteed no later than the beginning of the next
school year following the eligibility determination.” The certificate deals with the
teacher’s fitness to return to work and the return date guarantees the continuity
of instruction.
Significance: Rules related to constitutional rights must be narrowly drawn.
Determinations must be made on a case-by-case basis. Pregnancy has to be
treated like any other disability for maternity leave purposes.
Columbus Bd. of Educ. v. Penick
443 U.S. 449 (1979)
Facts: This is a class action suit brought by students in the Columbus, Ohio
school system. The suit alleges that the Board of Education had followed a series
of actions which had the purpose and effect of causing and perpetuating racial
segregation in the school system. “In 1976, over 32% of the 96,000 students in the
system were black. About 70% of all students attended schools that were at least
80% black or 80% white. . . Half of the 172 schools were 90% black or 90% white.”
Previous History: The District Court found that the “ racial segregation in the
Columbus school system ‘directly resulted from [the Board’s] intentional
segregative acts and omissions’ in violation of the Equal Protection Clause of the
~67~
Fourteenth Amendment.” The Court of Appeals, after an extensive review of the
massive volume of testimony, upheld the District Court.
Issue: Whether the Board of Education had by deliberate acts and omission
maintained a dual school system and whether the Courts could order a system
wide desegregation plan under such circumstances.
Holding: Where evidence shows that a school district had a dual system and
took deliberate actions to maintain the dual system, the Courts will order the
districts to develop plans to achieve unitary status.
Reasoning: In 1954, when Brown was decided, the Columbus Board “was not
operating a racially neutral, unitary school system, but was conducting ‘an
enclave of separate, black schools on the near east side of Columbus’ and that
‘the then-existing racial separation was the direct result of cognitive acts or
omissions of those school board members and administrators who had originally
intentionally caused and later perpetuated the racial isolation.’” Both lower
courts also established that the Board had a duty to “dismantle a well-entrenched
dual school system.” Both Brown and Green “imposed an affirmative duty to
desegregate.” Swann used criteria to determine whether a school system had
been disestablished -- racial composition of the student body, “racial composition
of teachers and staff, the quality of school buildings and equipment, or the
organization of sports activities.” In the intervening years, the Board had
“breached its constitutional duty by failing effectively to eliminate the continuing
consequences of its intentional systemwide segregation in 1954, but also found
that in the intervening years there had been a series of Board actions and
practices that could not ‘reasonably be explained without reference to racial
concerns’. . . These matters included the general practice of assigning black
teachers only to those schools with substantial black populations. . . the
intentionally segregative use of optional attendance zones, discontiguous
attendance areas, and boundary changes, and the selection of sites for new school
construction that had the foreseeable and anticipated effect of maintaining the
racial separation of the schools.” “Disparate impact and foreseeable
consequences, without more, do not establish a constitutional violation. . .
Nevertheless, the District Court correctly noted that actions having a foreseeable
and anticipated disparate impact are relevant evidence to prove the ultimate fact,
forbidden purpose” (emphasis added).
Significance: At the time of this decision, the Courts were more likely to find
evidence of intent to discriminate. Once school systems have achieved unitary
status, even on part of the required plan, the Courts can release them from the
parts of the plan where unitary status has been achieved.
~68~
Davis v. DeKalb County School District
No. 99-14455 (11th Cir. 2000)
Facts: Mensy was a physical education teacher at Knollwood Elementary School
in DeKalb County, Georgia. Mensy has sexually molested the plaintiffs during
the 1993-94 school year. Mensy resigned and was “convicted of six counts of
child molestation and one count of criminal attempt to commit child
molestation.” The plaintiffs then brought action against the school system and
the principal of the school, Duncan, under Title IX. Previously, the principal had
received one complaint that Mensy had touched a student in an inappropriate
manner during a touch football game and that Mensy had attempted to touch the
student on the buttocks when she was at a water fountain. The principal, the
school counselor, and the school social worker investigated the complaint and
concluded that the contact was incidental. The principal then told the teacher
that he disapproved of his conduct and order him to refrain from “patting boys
and girls on the back side.”
Issue: Whether, absent deliberate indifference, a school district can be held liable
for damages under Title IX.
Previous History: The District Court granted summary judgment to the school
district because no one in a position of authority to remedy the problem had
actual notice about the sexual harassment.
Holding: “A school district must have actual notice before it can held liable in
damages for intentional discrimination based on sex.”
Reasoning: The Court reviewed Cannon, Franklin, and Gebser. The school district
did not have actual notice. The complaint about the incidental touching during a
physical education game was insufficient to put the principal and the school
district on notice. The Court did not agree with the plaintiffs’ contention that the
principal failed to follow school system procedures in handling the case. The
Court also rejected the plaintiffs’ Section 1983 complaint on the same grounds.
The school system did not have actual notice and, furthermore, the school district
was not “deliberately indifferent to information that should have put them on
notice.”
Significance: School officials who take prompt and appropriate action after
actual notice of sexual harassment will not be deemed to be deliberately
indifferent; there, they will not be held liable.
~69~
Davis v. Monroe County Bd. Of Educ.
(95-5, May 2000)
Facts: The fifth grade student, LaShonda Davis repeatedly complained that a
male student, G.F., was harassing her sexually. She had reported a series of
incidents to teachers and her mother had voiced her concerns to the school
principal. “The harassment began in December 1992, when the classmate, G.F.,
attempted to touch LaShonda’s breasts and genital area and made vulgar
statements such as ‘I want to go to bed with you’ and ‘I want to feel your boobs.’
Similar conduct allegedly occurred on or about January 4 and January 20, 1993.
… LaShonda reported each of these incidents to her mother and her classroom
teacher, Diane Fort. … Petitioner, in turn, also contacted Fort, who allegedly
assured petitioner that the school principal, Bill Querry, had been informed of
the incidents.” The conduct continued. “In early February, G.F. purportedly
placed a door stop in his pants and proceeded to act in a sexually aggressive
manner toward LaShonda during physical education class. LaShonda reported
G.F.’s behavior to her physical education teacher, Whit Maples. …
Approximately one week later, G.F. again allegedly engaged in harassing
behavior, this time while under the supervision of another classroom teacher,
Joyce Pippin.” The incidents continued with reports to teachers. They ended in
early May when G.F. was charged with and pleaded guilty to sexual battery.
LaShonda’s mother brought suit for private damages under Title IX.
Previous History: The District Court dismissed the petitioner’s Title IX
complaint. A panel of the Eleventh Circuit Court reversed. The full Circuit Court
affirmed the District Court’s decision to dismiss the complaint. The Supreme
Court reversed the Circuit Court of Appeals and remanded the case.
Issue: Whether and under what conditions a person can file a private claim for
damages under Title IX for student-to-student sexual harassment.
Holding: A person can file a claim for damages under Title IX if the school
officials have been deliberately indifferent to claims of sexual harassment.
Reasoning: The Court relied on Gebser v. Lago Vista ISD and Franklin v. Gwinnett
County Public Schools. “Gebser thus established that a recipient [of federal funds]
intentionally violates Title IX, and is subject to a private damage action, where
the recipient is deliberately indifferent to known acts of teacher-student
discrimination. Indeed, whether viewed a ‘discrimination or ‘subject[ing]’
students to discrimination, Title IX ‘[u]nquestionably placed on [the Board] the
duty ‘not to permit teacher-student harassment in its schools, Franklin v. Gwinnett
County Public Schools, … and recipients violate Title IX’s plain terms when they
remain deliberately indifferent to this form of conduct.” The common law also
puts “schools on notice that they may be held responsible under state law for
their failure to protect students from the tortious acts of third parties.”
“Deliberate indifference makes sense as a theory of direct liability under Title IX
~70~
only where the funding recipient has some control over the alleged harassment.
A recipient cannot be directly liable for its indifference where it lacks authority to
take remedial action.” The Court went on to say that schools do have control
over the conduct of students during the school day. With regard to notice, the
Court pointed out that the National School Boards Association and the
Department of Education’s Office of Civil Rights (OCR) had notified schools that
Title IX applied to student-on-student sexual harassment. Student-to-student
sexual harassment, “if sufficiently severe, can likewise rise to the level of
discrimination actionable under the statute.” “By limiting private damages to
cases having a systemic effect on educational programs or activities, we reconcile
the general principle that Title IX prohibits official indifference to known peer
sexual harassment with the practical realities of responding to student behavior,
realities that Congress would not have meant to ignore.”
Significance: School officials should take seriously all complaints of sexual
harassment and investigate accordingly. Administrators should be familiar with
their district’s requirements related to Title IX. The case was settled out of court,
prior to the scheduled court hearing on the merits, for an undisclosed amount of
damages in January 2001.
Debra P. v. Turlington
730 F.2d 1405 (1984)
Facts: In 1978, the Florida Legislature amended the Educational Accountability
Act requiring students to pass a functional literacy examination, the SSAT-II, in
order to qualify for a diploma.
Issue: Whether requiring students to pass a functional literacy examination in
order to qualify for graduation violates the Fourteenth Amendment rights, Title
VI rights, or EEOA rights of black students.
Previous History: The District Court held that the SSAT-II violated the Due
Process and Equal Protection Clauses, Title VI, and EEOA. The Court enjoined
the use of the test until the 1982-83 school year, the year in which black students
would have had 12 full years of schooling in unitary systems. The State was
permitted to use the test in the interim for remediation purposes. The Court
upheld the instructional validity of the test. The Court ordered the 4-year
injunction because (1) the test perpetuated discrimination against black students
who had not been in a unitary school system and (2) the test’s implementation
schedule did not provide sufficient notice to students and parents. The Court of
Appeals upheld the injunction but remanded for further findings. The Circuit
Court required the District Court to determine whether SSAT-II was a “fair test
of what is taught in Florida’s classrooms.” The record was insufficient to
determine validity. Second, the Court should determine whether the test did
have a discriminatory impact that was not due to the effects of past
discrimination, or that “the test’s use as a diploma sanction would remedy those
~71~
effects.” On remand, the District Court concluded that the State had “met its
burden of proving by a preponderance of the evidence that the competency
examination is instructionally valid.” Second, the Court found that, “although
the test has a racially discriminatory impact, there is no causal link between the
disproportionate failure rate of black students and those present effects of past
segregation.” Third, the Court found that the State had carried the burden of
showing that the “diploma sanction would remedy those effects.” The Eleventh
Circuit Court of Appeals affirmed the District Court. A subsequent District Court
opinion rejected the appellant’s plea to continue the injunction.
Holding: The competency examination does not discriminate against black
students. The injunction had remedied the equal protection and due process
issues. The Court concluded, “(1) that the students were actually taught test
skills, (2) that the vestiges of past discrimination did not cause the SSAT-II’s
disproportionate impact on blacks, and (3) that the use of the SSAT-II as a
diploma sanction will help remedy the vestiges of past discrimination. Therefore,
the State of Florida may deny diplomas to students (beginning with the class of
1983) who have not yet passed the SSAT-II.”
Reasoning: (1) Florida commissioned Dr. James Popham to determine whether
the schools had indeed taught the skills tested, i. e. whether the test had
instructional validity. Dr. Popham surveyed teachers, school districts, and
students. In addition, site visits were conducted. Is Florida teaching what it is
testing? The appellants objected to the fact that the survey of the 1981-82 school
year did not address the issue of what had been taught since 1971. The Court
found that a preponderance of evidence supported the State’s contention that the
skills had been taught; therefore, the test had instructional validity. Florida’s
extensive remedial efforts helped to support this finding. (2) The Court held that
there was no relationship between the disproportionate impact on blacks and the
vestiges of past discrimination. In fact, the Court was impressed with the
percentages of black students who had passed the test. (3) The Court, relying on
the extensive remedial measures adopted by Florida, concluded that the diploma
sanction “would remedy the effects of past intentional discrimination.”
Significance: Proponents and opponents of high-stakes testing rely upon this
case heavily. The opponents are wont to cite the fact that Florida enjoined the use
of the test. They often do not point out that the injunction was lifted after 4 years
and that the 11th Circuit actually upheld the use of the examination for the
reasons stated above. Proponents of high-stakes testing are urged to rely upon
the Court’s analysis and conclusions in order to avoid adverse litigation. The test
has to be related to the curriculum. The curriculum has to be taught. When tests
have a disproportionate impact on ethnic groups, the Courts will scrutinize the
effects and look for causation and intent to discriminate. Obviously, bona fide
efforts to provide remedial help for students should be part of any high-stakes
testing program.
~72~
DeRolph v. the State of Ohio
677 N.E.2d 733 (Ohio 1997)
Facts: Several Ohio school districts brought suit against the state of Ohio. They
claimed that the state’s system of funding schools was unconstitutional. Ohio’s
constitution required a “thorough and efficient system of common schools.” “In
1802, when our forefathers convened to write our state Constitution, they carried
within them a deep-seated belief that liberty and individual opportunity could
be preserved only by educating Ohio’s citizens. These ideals, which spurred the
War of Independence, were so important that education was made part of our
first Bill of Rights, Section 3, Article VIII of the Ohio Constitution of 1802.” The
Court examined thoroughly the funding scheme under applicable legislation.
Issue: Whether “the promise of providing to our youth a free, public elementary
and secondary education in a ‘thorough and efficient system’ has been fulfilled.”
Previous History: The Ohio Court of Common Pleas of Perry County held that
the current scheme of financing Ohio’s schools was unconstitutional. The Court
of Appeals reversed. The Ohio Supreme Court reversed the Court of Appeals.
Holding: The Ohio scheme for funding its public schools is unconstitutional.
Reasoning: The School Foundation Program is at the heart of the issue. The
funding scheme has “caused or permitted to continue vast wealth-related
disparities among Ohio’s schools, depriving many of Ohio’s public school
students of high quality educational opportunities. The guarantees in the law
work to substantial benefit of wealthier districts and represent a flaw in the
system of school funding, because they work against the equalization effect of
the formula.” Tax reduction factors have produced “phantom revenue.” Citing
Kern Alexander, the Court stated, “It is the State’s duty to provide a system
which allows its citizens to fully develop their human potential.” The Court
reviewed court decisions from other states (Ark., Cal., Conn., Ky., Mont., Tenn.,
Tex., Wash., and Wyo.). “In addition to deteriorating buildings and related
conditions, it is clear from the record that many of the school districts throughout
the state cannot provide the basic resources necessary to educate our youth….
The accessibility of everyday supplies is also a problem, forcing schools to ration
such necessities as paper, chalk, art supplies, paper clips, and even toilet paper.”
“Lack of sufficient funding can also lead to poor academic performance.” “All
the facts documented in the record lead to one inescapable conclusion—Ohio’s
elementary and secondary public schools are neither thorough nor efficient. The
operation of the appellant school districts conflicts with the historical notion that
the education of our youth is of utmost concern and that Ohio children should be
educated adequately so that they are able to participate fully in society.”
~73~
Significance: This decision falls in line with numerous cases from around the
nation, which require states to equalize educational opportunities for children so
that there are not large disparities among school districts in the state in regard to
funding.
Deselle v. Guillory
407 So.2d 79 (La. Court of Appeals, Third Cir., 1981)
Facts: Defendant Guillory was at a summer church camp for girls. She heard
reports from some of the girls regarding teachers who were fondling students.
The girls had heard about or witnessed these incidents. A church deacon advised
Ms. Guillory to discuss her concerns about these reports with the school
principal at Bordelonville High School. Principal Bordelon told her he had never
witnessed any thing like she was alleging. He said he did not believe the
allegations. After the principal informed three of the teachers about the
allegations, they went to Ms. Guillory’s home to discuss matters. An argument
ensued and one of the teachers threatened to sue her. Ms. Guillory and another
parent petitioned the school board to investigate their concerns. The investigator
subsequently found that there was no basis of action against the teachers. The
teachers then sued the Guillorys for defamation.
Issue: Whether the Guillorys defamed the teachers by discussing their concerns
about what Ms. Guillory had heard at summer camp.
Previous History: The trial court denied the teachers’ claims.
Holding: The parents had discussed their concerns with the appropriate parties
without malice; therefore, they had established the existence of qualified
privilege. The parents were not entitled to attorney fees because the court held
that they had found no lack of sincerity on the part of the teachers.
Reasoning: In order to establish defamation, “the plaintiff must establish the
following elements: (1) defamatory words; (2) publication; (3) falsity; (4) malice,
actual or implied; and (5) resulting injury. The available defenses against
defamation are privilege and truth. A qualified privilege existed because the
parents shared an interest or duty – the well being of the students. Such
communication must be made in good faith and without malice.
Significance: Courts are reluctant to curb legitimate speech when there is a
shared interest, which supports a qualified privilege. Otherwise, parents would
not have ways to pursue concerns about the safety and well being of their
children and other children.
~74~
East Hartford Educ. Assn. v. Bd. of Educ. of the Town of
East Hartford
562 F.2d 838 (2nd Cir. 1977)
Facts: The plaintiff teacher objected to the dress policy which required a coat and
tie for male teachers. He was granted permission to wear different attire for his
filmmaking class but not for his English classes. The plaintiff thought there was
value in identifying in dress with the generation of students he was teaching. He
saw value in not dressing like the establishment. Finally, he thought that he
could achieve closer rapport with his students. There was no evidence that the
plaintiff’s dress would disrupt the educational atmosphere. The plaintiff sought
an injunction against the policy requirement.
Previous History: The District Court granted summary judgment for the School
Board. A divided panel of the Circuit Court reversed and remanded. The
appellate Court en banc then reversed the panel and affirmed the judgment of
the District Court.
Issue: Whether the Board could enforce a dress code requiring coats and ties for
male teachers.
Holding: The school board may impose reasonable regulations governing the
appearance of employees.
Reasoning: Courts should be reluctant to interfere with the decisions of local
school boards. The teacher did raise a First Amendment claim of symbolic
speech. The Court must balance the interests of the school district in “promoting
respect for authority and traditional values, as well as discipline in the
classroom, by requiring teachers to dress in a professional manner” with the
rights of the teacher to symbolic expression. “As conduct becomes less and less
like ‘pure speech’ the showing of governmental interest required for its
regulation is progressively lessened. The symbolic speech claims in this case,
unlike Tinker, are “vague and unfocused.” The Court held that the teacher had
“other, more effective means of communicating his social views to his students.”
“The very notion of public education implies substantial public control.
Educational decisions must be made by someone; there is no reason to create a
constitutional preference for the views of individual teachers over those of their
employers.” The Court indicated that it was unwilling to “expand First
Amendment protection to include a teacher’s sartorial choice.” The Court
rejected the teacher’s claim that the regulation violated his Fourteenth
Amendment due process rights. Choice of dress is not included among “he most
personal basic decisions” that the Court has sought to protect. Unlike cases
involving hair length and beards, the plaintiff in this case can remove his tie at
the end of the workday.
Significance: This is a 1977 decision. Courts traditionally have split on dress
codes. It is conceivable that Courts in other jurisdictions might rule otherwise
~75~
today. Courts will also look at safety considerations when dealing with dress
code regulations.
Eckmann v. Bd. Of Educ. Of Hawthorne School Dist. No.
17
636 F.Supp. 1214 (N.D.Ill. 1986)
Facts: The Court had returned a verdict against the school board for $2,000,000 in
compensatory damages. Punitive damages in varying amounts had been
awarded against board members individually. Plaintiff Eckmann sought these
damages for her allegedly unconstitutional discharge. The plaintiff had had a
child out-of-wedlock and had decided to raise the child as a single parent. After
the initial verdict, the Board filed for a Judgment Notwithstanding the Verdict
(JNOV) and a new trial.
Previous History: The previous Court had ruled against the School Board and
had awarded the damages listed above.
Issue: Whether a Board which receives an adverse judgment is entitled to JNOV
and a new trial.
Holding: The Board’s motion for JNOV and a new trial were denied. The Court
did grant the Board’s motion for an amended verdict. The compensatory
damages were remitted to $750,000. The individual board member’s requests for
a new trial were granted subject to the plaintiff’s acceptance of a remittitur to be
discussed at a post-trial conference.
Reasoning: The Court relied on Mount Healthy. The initial burden is on the
teacher to show that her conduct was constitutionally protected. The Board then
must establish by a preponderance of the evidence that the teacher would have
been dismissed in the absence of the protected conduct. The Court ruled that the
plaintiff’s conduct was protected by “substantive due process.” Quoting Sotto v.
Wainwright, the Court held that right to substantive due process “is a concept of
ordered liberty” which includes “the right to vote, … the right of association, …
the right of access to the courts, … and assorted freedoms against state intrusion into
family life and intimate personal decisions, ….(Emphasis added).” The Board had
failed to show that the teacher had proselytized pupils regarding her pregnancy
out of wedlock or that it had any substantial effect upon her students. The Board
had shown no significant harm to the students, faculty, or school. The record also
contained no evidence that the teacher was an immoral person. There was no
evidence in the record that the teacher had been negligent or insubordinate. Once
the Board had learned of the plaintiff’s situation, it voted to reduce her pay and
removed her from sponsorship of extracurricular activities (student council,
cheerleading, fund raisers, trips, and graduation exercises).
Significance: When a Board dismisses teachers for impermissible reasons, the
Courts will apply the Mount Healthy test.
~76~
Edwards v. Aguilard
482 U.S. 578 (1987)
Facts: Louisiana’s “Creationism Act” forbade the teaching of the theory of
evolution in public schools unless “creation science” was also taught. Parents,
teachers, and religious leaders challenged the constitutionality of the Act.
Issue: Whether the State can require schools to teach creationism if and when the
theory of evolution is taught.
Previous History: The District Court and the Court of Appeals held that the Act
violated the Establishment Clause of the First Amendment.
Holding: Requiring schools to teach creationism, if and when they teach
evolution, violates the Establishment Clause of the First Amendment.
Reasoning: The Court applied the first prong of the Lemon Test - whether the
purpose of the Act was to endorse or disapprove of religion - to this case. “The
Court has been particularly vigilant in monitoring compliance with the
Establishment Clause in elementary and secondary schools. Families entrust
public schools with the education of their children, but condition their trust on
the understanding that the classroom will not purposely be used to advance
religious views that may conflict with the private beliefs of the student and his or
her family. Students in such institutions are impressionable and their attendance
is involuntary.” The Act does not enhance academic freedom. It attempts to
discredit evolution by counterbalancing it with the teaching of creationism.
Examining the legislative history, the Court concluded that “the preeminent
purpose of the Louisiana legislature was clearly to advance the religious
viewpoint that a supernatural being created humankind.” “Furthermore, it is not
happenstance that the legislature required the teaching of a theory that coincided
with this religious view. The legislative history documents that the Act's primary
purpose was to change the science curriculum of public schools in order to
provide persuasive advantage to a particular religious doctrine that rejects the
factual basis of evolution in its entirety. The sponsor of the Creationism Act,
Senator Keith, explained during the legislative hearings that his disdain for the
theory of evolution resulted from the support that evolution supplied to views
contrary to his own religious beliefs.” The Court also entered this caveat,
“Teaching a variety of scientific theories about the origins of humankind to
schoolchildren might be validly done with the clear secular intent of enhancing
the effectiveness of science instruction. But because the primary purpose of the
Creationism Act is to endorse a particular religious doctrine, the Act furthers
religion in violation of the Establishment Clause.”
Significance: Even with the recent changes in First Amendment analysis, it is
still unlikely that the courts will allow States to pass laws which further
particular religious beliefs in the public schools.
~77~
Ellerbee v. Mills
262 Ga. 516 (1992)
Facts: Dexter Mills, principal at Harrison High School in Cobb County, sued
Dexter Ellerbee, a former teacher at Harrison, for libel and slander. Ellerbee had
made false allegations against Mills and had publicized these allegations in the
community.
Issue: Whether Mills was a public figure, alla N.Y. Times v. Sullivan, for purposes
of determining the standard for libel and slander.
Previous History: The lower court had found in favor of Mills because Ellerbee
had not used ordinary care to determine whether his statements were true or
false. The lower court also enjoined Ellerbee permanently from making 21
statements about Mills.
Holding: Mills is not a public figure under the N. Y. Times v. Sullivan standard.
The higher court removed the permanent injunction because the jury did not find
the 27 statements defamatory and the injunction was overbroad in its sweep.
Reasoning: Obviously, public figures, having assumed the responsibilities of
public office, are subject to closer scrutiny than private citizens. “In our view,
under normal circumstances, a principal simply does not have the relationship
with government to warrant ‘public figure’ status under New York Times.
Principals, in general, are removed from the conduct of government, and are not
policymakers at the level intended by the New York Times designation of public
official.” Given that principals are not public officials, Mills did not have to prove
actual malice.
Significance: Principals and teachers in Georgia and many other jurisdictions are
not public figures. If others make false statements about them, they do not have
to prove actual malice. The publication of the false statements without due care
regarding truth or falsity can lead to a finding of libel and slander. With the
emergence of local school councils, does the principal now become a policy
maker who would be a “public figure?”
Engel v. Vitale
370 U.S. 421 (1962)
Facts: The State of New York had composed the Regents’ Prayer and required
that it be recited in the public schools at the beginning of the day. The prayer
was, “Almighty God, we acknowledge our dependence upon Thee, and we beg
Thy blessings upon us, our parents, our teachers, and our Country.” Parents then
challenged the constitutionality of the prayer.
Issue: Whether the Regents’ Prayer violated the Establishment Clause of the First
Amendment.
~78~
Previous History: The New York Court of Appeals sustained the lower court and
upheld the authority of the Regents to require recitation of the prayer each day
so long as no students were coerced to participate.
Holding: The Court held that the regents’ Prayer violated the Establishment
Clause of the First Amendment.
Reasoning: The Court began by reviewing the reason many people originally
came to this country. They came seeking religious freedom. The Court also noted
that the very people who came to avoid religious persecution became the
persecutors when they got into power. “The First Amendment was added to the
Constitution to stand as a guarantee that neither the power nor the prestige of
the Federal Government would be used to control, support, or influence the
kinds of prayer the American people can say. . . .Under the Amendment’s
prohibition against the governmental establishment of religion, as reinforced by
the provisions of the Fourteenth Amendment, government in this country, be it
state or federal, is without power to prescribe by law any particular form of
prayer which is to be used as an official prayer in carrying on any program of
governmentally sponsored religious activity.” The fact that the prayer is
nondenominational does not enable it to pass constitutional muster. The Court
also noted that making it voluntary did not make it acceptable. The Court
countered arguments that its ruling created an atmosphere of hostility toward
religion, “It is neither sacrilegious nor antireligious to say that each separate
government in this country should stay out of the business of writing or
sanctioning official prayers and leave that purely religious function to the people
themselves and to those people choose to look for religious guidance.”
Significance: The Court ended by quoting James Madison, “It is proper to take
alarm at the first experiment on our liberties. . . .” The Court has consistently
held that state-sponsored religious expression violates the Constitution.
Epperson v. Arkansas
393 U.S. 97 (1968)
Facts: Epperson was a public school teacher in Little Rock, Arkansas and she
brought this suit to challenge the Arkansas law which made it unlawful for
teachers to teach or use a textbook which teaches that “mankind ascended or
descended from a lower order of animals.” Any teacher who violated the law
would be subject to dismissal.
Issue: Whether a state can proscribe the teaching the theory of evolution because
it conflicts with the religious beliefs of some people.
Previous History: The Chancery Court held that the statute violated the
Fourteenth Amendment of the U. S. Constitution, specifically because it
interfered “with freedom of speech and thought contained in the First
Amendment.” The Supreme Court of Arkansas reversed. It sustained the statute
~79~
“as an exercise of the State’s power to specify the curriculum in the public
schools.”
Holding: The statute violated the “Fourteenth Amendment which embraces the
First Amendment’s prohibition of state laws respecting an establishment of
religion.”
Reasoning: The Court declined to address the issue of the vagueness of the
statute. “In any event, we do not rest our decision upon the asserted vagueness
of the statute. On either interpretation of its language, Arkansas' statute cannot
stand. It is of no moment whether the law is deemed to prohibit mention of
Darwin's theory, or to forbid any or all of the infinite varieties of communication
embraced within the term ‘teaching.’ Under either interpretation, the law must
be stricken because of its conflict with the constitutional prohibition of state laws
respecting an establishment of religion or prohibiting the free exercise thereof.
The overriding fact is that Arkansas' law selects from the body of knowledge a
particular segment which it proscribes for the sole reason that it is deemed to
conflict with a particular religious doctrine; that is, with a particular
interpretation of the Book of Genesis by a particular religious group.” The Court
noted that there were many antecedents to this decision. Government must be
neutral toward religion. The Court recognized that it must exercise judicial
restraint when adjudicating school matters; however, it must also vigilantly
protect constitutional freedoms. The Court decided this case in the narrow terms
of “the First Amendment’s prohibition of laws respecting an establishment of
religion and prohibiting the free exercise thereof. The Court cited Engel and
Schempp as precedents. “The State's undoubted right to prescribe the curriculum
for its public schools does not carry with it the right to prohibit, on pain of
criminal penalty, the teaching of a scientific theory or doctrine where that
prohibition is based upon reasons that violate the First Amendment. It is much
too late to argue that the State may impose upon the teachers in its schools any
conditions that it chooses, however restrictive they may be of constitutional
guarantees.” Finally, the Court said that the law did not meet the test of religious
neutrality. “Arkansas' law cannot be defended as an act of religious neutrality.
Arkansas did not seek to excise from the curricula of its schools and universities
all discussion of the origin of man. The law's effort was confined to an attempt to
blot out a particular theory because of its supposed conflict with the Biblical
account, literally read. Plainly, the law is contrary to the mandate of the First,
and in violation of the Fourteenth, Amendment to the Constitution.”
Significance: The issue in this case keeps rearing it head. Most recently, some
states have passed laws which require the equal treatment of creationism if
evolution is taught (see, Edwards v. Aguilar).
~80~
Erb v. Iowa State Bd. of Public Instruction
216 N.W.2d 339 (Sup. Ct. Iowa 1974)
Facts: Richard Erb was an art teacher who helped another teacher, Margaret
Johnson, set up the boutique she planned to open. They became romantically
involved. Robert Johnson, a farmer and husband of Margaret, became suspicious.
On one occasion, “he hid in the trunk of the car. Margaret drove the car to school,
worked there for some time, and later drove to a secluded area in the country
where she met Erb. Margaret and Erb had sexual intercourse in the back seat of
the car while Johnson remained hidden in the trunk.” Later, Johnson, thinking
that he had to have more proof, organized a raiding party which surrounded the
car and took pictures of “Margaret and Erb who were partially disrobed in the
back seat.” Erb offered to resign his teaching position but the board unanimously
refused to accept his resignation. Subsequently, the board voted to revoke his
certificate.
Previous History: The district court agreed that Erb’s conduct was sufficient for
revocation and denied the writ of certiorari. The Supreme Court reversed.
Issue: Whether Erb’s adulterous conduct in and of itself constituted sufficient
cause for revocation of his teaching certificate.
Holding: The Supreme Court held that Erb’s conduct in and of itself was not
sufficient to revoke his certificate.
Reasoning: Teachers are subject “to reasonable administrative supervision and
restriction so that proper discipline may be maintained and the teacher’s conduct
will neither disrupt not impair public service.” In essence, the Court held, based
on precedent, that a teacher’s private conduct is cause for certificate revocation
“only to the extent that it mars him as a teacher, who is also a man.” Assuming
that such conduct is sufficient cause would vest boards with “unfettered power”
to revoke the certificate of any employee whose conduct it disapproved. The
Court weighed the conduct against years of satisfactory service. It saw this as an
isolated incident which was not likely to recur. The teacher’s certificate “can be
revoked only upon a showing before the board of a reasonable likelihood that
the teacher’s retention in the profession will adversely affect the school
community.”
Significance: Boards have to show that the teacher’s conduct has an adverse
impact on his/her performance or ability to perform in the school community.
Everson v. Bd. of Educ. of Ewing Tp.
330 U.S. 1 (1947)
Facts: The New Jersey legislature had passed a law which authorized boards to
reimburse parents for transportation costs incurred in getting their children to
and from school on private school buses. Ewing Township reimbursed parents,
including the parents of parochial school students.
~81~
Issue: Whether the provision of reimbursement to parents who send their
children to parochial schools violated the Due Process Clause and the
Establishment Clause of the Constitution.
Previous History: The trial court held that the law was unconstitutional. The
appellate court reversed.
Holding: The New Jersey legislation does not violate the Due Process Clause of
the Fourteenth Amendment or the Establishment Clause of the First
Amendment.
Reasoning: The New Jersey statute did not violate the Due Process Clause by
taking money from taxpayers in order to reimburse other citizens to send their
children to church-related schools. The fact that a law which provides for the safe
transport for students “coincides with the personal desires of individuals most
directly affected is certainly inadequate reason for us to say that the legislature
has erroneously appraised the public need.” The legislation serves a public
purpose. With regard to the Establishment Clause, the Court reviewed the
history of religious persecution which brought about the provisions of the First
Amendment: “The meaning and scope of the First Amendment, preventing
establishment of religion or prohibiting the free exercise thereof, in the light of its
history and the evils it . . . was designed forever to suppress, have been several
times elaborated by the decisions of this Court prior to the application of the First
Amendment to the states by the Fourteenth. The broad meaning given the
Amendment by these earlier cases has been accepted by this Court in its
decisions concerning an individual's religious freedom rendered since the
Fourteenth Amendment was interpreted to make the prohibitions of the First
applicable to state action abridging religious freedom. There is every reason to
give the same application and broad interpretation to the 'establishment of
religion' clause. The interrelation of these complementary clauses was well
summarized in a statement of the Court of Appeals of South Carolina, quoted
with approval by this Court, in Watson v. Jones, 13 Wall. 679, 730: 'The structure
of our government has, for the preservation of civil liberty, rescued the temporal
institutions from religious interference. On the other hand, it has secured
religious liberty from the invasions of the civil authority.” The Court concludes
that the legislation, judged by these standards, is not unconstitutional. Even the
fact that the reimbursement for transportation may be the very factor that allows
some parents to send their children to parochial schools does not run afoul of the
First Amendment. No one seems to argue with the fact that local police officials
provided traffic safety protection at parochial schools. “That Amendment
requires the state to be neutral in its relations with groups of religious believers
and non-believers; it does not require the state to be their adversary. State power
is no more to be used so as to handicap religions, than it is to favor them. This
Court has said that parents may, in the discharge of their duty under state
compulsory education laws, send their children to a religious rather than a
~82~
public school if the school meets the secular educational requirements which the
state has power to impose . . . It appears that these parochial schools meet New
Jersey's requirements. The State contributes no money to the schools. It does not
support them. Its legislation, as applied, does no more than provide a general
program to help parents get their children, regardless of their religion, safely and
expeditiously to and from accredited schools. The First Amendment has erected
a wall between church and state. That wall must be kept high and impregnable.
We could not approve the slightest reach. New Jersey has not breached it here.”
Significance: This was the first in a series of cases which dealt with the issue of
public aid to parochial schools.
Falvo v. Owasso ISD No. I-011
220 F.2d 1200 (10th Cir. 2000)
Facts: The plaintiff, a parent of school children, complained to the school district
about the practices “of allowing students both to grade one another’s tests and
other work and to call out their own grades in class.” The district, contending
that children always had the option of reporting their own grades privately,
refused to change the practice.
Issue: Whether the practices of allowing students to grade one another’s papers
and other work and call out their own grades violate the privacy provisions of
the Fourteenth Amendment and the Family Education Rights and Privacy Act
(FERPA).
Previous History: The District Court granted summary judgment for all
defendants on the constitutional claims and FERPA claims. The District Court
also granted summary judgment to the individual defendants on the plaintiff’s
claim for monetary relief and injunctive relief.
Holding: The practices do not violate the Fourteenth Amendment. The practices
do violate FERPA. Qualified immunity does protect against monetary damages.
It does not protect against liability for injunctive relief.
Reasoning: The Court found that the Fourteenth Amendment did not prevent
the practices. “Although this court acknowledges the existence of a Fourteenth
Amendment right to prevent disclosure of certain types of personal information,
the school work and test grades of pre-secondary school students do not rise to
the level of this constitutionally protected category of information.” The grades
of these students are not “so highly personal or intimate that they fall within the
zone of constitutional protection. . . .” The plaintiff does have a claim under
FERPA. “The clear language of the relevant provision of FERPA, 20 U.S.C. §
1232g(b)(1), reveals that it is intended to protect the privacy of students and their
parents.” Congress intended to place a “binding obligation on schools.” The
practices implicated here constitute education records within the meaning of
FERPA. The grades are transmitted to a teacher who then uses them to create an
~83~
“education record.” FERPA prohibits the release of such information without the
written consent of parents.” The District Court erroneously concluded that “the
term ‘education records’ within FERPA does not encompass the grades at issue
here.” “Based purely on the language of the statute itself, this court concludes the
grades which students record on one another’s homework and test papers and
then report to the teacher constitute ‘education records’ under FERPA.” The
defendants are entitled to qualified immunity because the right, which the
plaintiff asserted under FERPA, was not clearly established at the time the
conduct occurred. Qualified immunity only protects against monetary damages;
therefore, the Court remanded the case to the District Court for determination of
the issue of injunctive relief.
Significance: Teachers should avoid the grading practices described here. In
addition, teachers should never permit student aides to have access to or record
the grades of other students.
Fay v. South Colonie Central School Dist.
802 F.2d 21 (2nd Cir. 1986)
Facts: Fay had legal custody of his two children pursuant to the separation
agreement with his ex-wife. After the U.S. Department of Education advised the
district of Fay’s rights under the Family Educational Rights and Privacy Act
(FERPA), the school district mailed Fay copies of all academic records but
refused to comply with his request that the school mail him all announcements
which are given to the children and their custodial parent. The New York
Commissioner of Education advised Fay that requiring the district to mail all
notices would place an “unreasonable burden” on the school district. Fay then
instituted legal action.
Issue: Whether the school district had violated Fay’s rights under FERPA.
Previous History: The District Court held, inter alia, that the refusal to send all
documents to Fay was a violation of his rights under FERPA. The Court awarded
nominal damages and granted injunctive relief on the pendant state law claim.
The Court rejected constitutional claims related to due process in the parental
right to bring up children. The Court also dismissed all claims against the
Commissioner.
Holding: The Court of Appeals ruled that the Commissioner but not the school
district was cloaked with Eleventh Amendment immunity. The Court stated that
the federal court should abstain from deciding the due process issue pendant on
state law. The Circuit Court did remand on the FERPA claim for determination
regarding compensatory damages.
Reasoning: Fay did have a private claim under FERPA, which could be
vindicated in a 42 U.S.C. §1983 action. The due process issue could be settled in
state court via the enforcement of the custodial agreement.
~84~
Significance: Parents have a private claim to action if their rights are violated
under FERPA.
Floyd v. Waiters
No. 94-8667 (11th Cir. 1998, 1999)
Facts: Student plaintiffs claimed that Booker, a security guard for the Bibb
County Board of Education, had sexually harassed them. The plaintiffs brought
suit under Title IX and Section 1983.
Issue: Whether and under what conditions a school district may be held liable
for sexual harassment under Title IX.
Previous History: The District Court granted summary judgment for the school
district.
Holding: “The school district can be liable only for the school district’s own acts
or omissions: institutional misconduct is the basis for institutional liability.”
Reasoning: Under the Spending Clause of the Constitution, the federal
government can contract with school districts to withhold federal funds should
the school district discriminate on the basis of sex. The power to bring monetary
liability onto the school district does not extend beyond the superintendent and
board to lower employees under Georgia law. “It is true that sexual misconduct
is usually covert; but we have no good reason to think that Congress intended to
place substantial monetary liability on local school districts for the secret
misconduct of employees—except perhaps for the secret misconduct of the
superintendent himself.” “For liability in Georgia, the superintendent or the
board must have actual knowledge of the sexual harassment and then fail to take
reasonable steps to end the abuse.” The Court dismissed the claim that the other
defendants had policy making authority simply because the Board had delegated
responsibilities to them. “As a result, Plaintiffs have—at most—demonstrated
only that these Defendants had some ‘discretion’ in the performance of their jobs.
But, ‘the mere delegation of authority to a subordinate to exercise discretion is
not sufficient to give the subordinate policymaking authority.’” The Court also
rejected the Plaintiffs’ claim that the Board had allowed certain customs to exist
because they had allowed sexual harassment practices to continue when they
should have stopped them. Here again, the policymakers must have actual
knowledge of such customs. Finally, the Court concluded, “that the BOE did not
act with deliberate indifference to the training and supervision of the security
department.”
Significance: After its decision in Gebser, the Supreme Court remanded this
decision to the Court of Appeals for reconsideration in the light of Gebser. The
11th Circuit then concluded this decision was consistent with the Gebser. The U.S.
Supreme Court then denied certiorari in 1999.
~85~
Fowler v. Bd. of Educ. of Lincoln County, Kentucky
819 F.2d 657 (6th Cir. 1987)
Facts: During a non-instructional day, Fowler allowed the showing of Pink FloydThe Wall during class time. The teacher rented the video and was either grading
papers or absent from the room while the movie was being shown. She did not
preview the movie. Having been advised by the clerk at the rental store of certain
objectionable scenes, she instructed a student to hold an 8 ½ x 11 folder in front
of the screen during these scenes. The music, language, and certain scenes were
objectionable because of sex or violence. Flowers morphed into human sex
organs which then engaged in sexual intercourse. “Other segments involving a
violent rape, nudity, a suggestion of oral sex, and a naked woman and naked
man in bed engaging in foreplay and intercourse were also shown in the
morning.” The principal asked Fowler for the movie. The superintendent and
school board viewed the movie and instituted action to dismiss Fowler.
Previous History: Fowler testified before the Board that she thought the movie
had “significant value.” The Board dismissed Fowler for insubordination and
conduct unbecoming a teacher. The plaintiff initiated legal action claiming that
her First and Fourteenth Amendment rights had been violated. She further
alleged that the applicable Kentucky statute was constitutionally vague and
overbroad. Finally, she contended that the Board did not have substantial
evidence to support her dismissal. The District Court found for Fowler and said
that her First Amendment rights had been violated. The Court also concluded
that she was not insubordinate and that her right to due process was not
abridged by the Board’s procedures.
Issue: Whether the dismissal of the plaintiff for showing the movie violated her
First and Fourteenth Amendment right to free expression, the right to due and
adequate notice of the rules she was violating, and the right to have all charges
stated up front in the notice of dismissal.
Holding: The Board of Education did not violate the plaintiff’s First and
Fourteenth Amendment rights when it dismissed her for conduct unbecoming a
teacher.
Reasoning: Mount Healthy established that teachers cannot be dismissed for
exercising constitutionally protected rights. The Court also held that the
“government must establish by a preponderance of evidence that the decision to
terminate would have been made in the absence of the exercise of the
constitutionally protected right. Teachers in secondary schools have limited
academic freedom The Court made it clear that teachers are expected to be role
models. They are also responsible for establishing discipline. The Court
concluded that Fowler’s First Amendment rights were not violated. Only certain
forms of “expressive conduct are entitled to protection under the First
Amendment.” Was there intent to convey a particularized message? Was this
coupled with the likelihood that the message would be understood? Fowler’s
conduct did not meet these criteria and, therefore, her showing the movie was
~86~
not protected expression. The Court ruled that the Kentucky statue related to
“conduct unbecoming a teacher” was not constitutionally vague and overbroad.
It is not possible to “spell out in detail all the conduct that will result” in conduct
unbecoming a teacher. Given the circumstances surrounding the showing of the
film, Fowler had adequate notice that her conduct was unbecoming a teacher. “In
the present case, we conclude that the plaintiff’s conduct, although not illegal,
constituted serious misconduct. . . .In the process, she abdicated her function as
an educator.”
Significance: Educators are expected to be role models. Educators are expected to
use good judgment and to follow policies and procedures related to curriculum
and instruction. Instructional activities must relate directly to the stated
curriculum. The material must be appropriate to the age and sophistication of the
students. In essence, educators should not use films which have an R rating
without extremely good justification. When they do, they should make sure the
principal knows and should send home a permission slip fully describing the
activity and reasons therefore to parents. The form must be signed and returned.
Alternative arrangements should be made for students whose parents do not
wish for them to engage in the activity.
Franklin v. Gwinnett County Public Schools
503 U.S. 60 (1992)
Facts: Christine Franklin, a student at North Gwinnett High School from 1985 –
1989, brought this suit claiming that she has been a victim of continuous sexual
harassment. She alleged that he harassment had begun in her tenth grade year.
The teacher was Andrew Hill, a sports coach and teacher. Franklin alleged that
he engaged her in conversations about sexual matters, including questions about
her sexual experiences with her boyfriend and whether she would consider
having sex with an older man. At one point, she alleged that Hill kissed her on
the mouth in the school parking lot. She also alleged that Hill got her out of
scheduled classes on three occasions for the purpose of having coercive sexual
intercourse with her in a private office. Franklin further alleges that other school
officials were aware of her complaints but took no action. Franklin alleged that
one school official had discouraged her from pressing charges against Hill. Hill
resigned provided that all matters pending against him would be dropped. The
school system then closed its investigation.
Previous History: The District Court dismissed the complaint because it believed
that Title IX did not authorize the award of monetary damages. The Supreme
Court granted certiorari and reversed the District Court because the opinion
conflicted with a decision from the Court of Appeals from the Third Circuit.
Issue: Whether Title IX permits a remedy of monetary damages.
Holding: Title IX does permit an award of damages in sexual harassment cases.
~87~
Reasoning: Cannon v. University of Chicago (441 U.S. 677, 1979) established that
“Title IX is enforceable through an implied right of action.” Other precedent
established that, absent clear directions to the contrary from Congress, federal
courts can fashion appropriate remedies when a federal statute has been violated
(Bell v. Hood, 327 U.S. 678, 1946). “The question whether a litigant has a ‘cause of
action’ is analytically distinct and prior to the question of what relief, if any, a
litigant may be entitled to receive.” Reviewing the legislative history, the Court
concluded that Congress followed a common law tradition which would
consider the “denial of remedy as an exception, rather than the rule.” The Court
rejected the respondents’ (Gwinnett County Public Schools and the United
States) argument that the awarding of damages violates the separation of power
principle because granting the relief “involves no such increase in judicial
power.” The Court also rejected the respondents’ argument that Congress’
Spending Clause prohibited a monetary award regardless of whether the
respondents’ actions were intentional or unintentional. Finally, the Court rejected
the respondents’ contention that “the remedies permissible under Title IX should
nevertheless be limited to backpay and prospective relief.” The Supreme Court
remanded the case to the District Court for a decision consistent with this
opinion.
Significance: Franklin established that victims of sexual harassment can sue for
damages. This case stresses that school officials cannot take allegations of sexual
harassment lightly. Consistent with published policies and procedures, school
officials should investigate all situations where sexual harassment is alleged. In
school systems, there are a system level title IX coordinators to whom all
allegations and the conclusions of local school investigations must be reported.
Local principals can designate the persons, including the principal, to whom
reports are to be made at the local school. Franklin was settled out of court for a
sealed, undisclosed sum of money.
Freeman v. Pitts
503 U.S. 467 (1992)
Facts: The DeKalb County, Georgia School System had been under a consent
order to dismantle the de jure segregation that had existed in the system. In 1986,
the District Court concluded that DeKalb County had made progress toward
achieving an unitary system and held that the system had achieved unitary
status on four of the six factors—student assignments, transportation, physical
facilities, and extracurricular activities. The Court also found that the system had
achieved unitary status with regard to pupil assignment; however, “independent
demographic changes” had created segregated patterns once again. The Court
order further relief in the areas of faculty assignment, resource allocation, and
quality of education. The Court of Appeals reversed the District Court.
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Issue: Whether the Courts can release systems which have achieved unitary
status on specific factors from further efforts in those areas and whether Courts
can order remedies when demographic changes, which do not result from
government action, create segregated patterns.
Previous History: See Facts.
Holding: Courts can release school districts from supervision and control on an
incremental basis as the district meets compliance standards in particular areas.
Once school districts have complied and created an unitary school system, the
Courts cannot order further actions to “remedy imbalances created by
demographic patterns.”
Reasoning: The School System had shown a good faith effort to achieve unitary
status and had achieved that status on four out of six factors. The Court analyzed
the housing patterns which had emerged in the northern and southern sections
of the county. The District had taken action to ameliorate the effects of
demographic patterns, including review by a biracial committee and a volunteer
Majority-to-Minority program. The Court noted that remedies had to be flexible.
Returning control to local school systems which have made bona fide good faith
efforts is very important for maintaining the local autonomy of local school
districts. The record of compliance is a significant factor in determining whether
the system has made a good faith efforts to achieve unitary status. With regard to
the impact of demographic factors, the Court held, “Where resegregation is a
product not of state action, but of private choices, it does not have constitutional
implications.”
Significance: Here, the Court dealt with a new issue. The Harvard Civil Rights
Project has documented the resegregation of American society and schools;
however, there is a difference between segregation which comes about as the
result of unconstitutional actions by the State and segregation which emerges as
the result of choices people make regarding their place of residence. Under threat
of litigation, DeKalb County is phasing out the M-to-M plan.
Gaylord v. Tacoma School Dist. No. 10
559 P.2d 1340, cert. denied, 434 U.S. 879 (1977)
Facts: Gaylord, a teacher at Wilson High School for over 12 years, had known of
his homosexuality for 20 years. During the previous few years, Gaylord had
actively sought the company of other homosexual men through membership in
the Dorian Society and, by his own admission, had participated in homosexual
acts. Gaylord’s homosexuality became known to school authorities when a
former Wilson High School student told the assistant principal that he thought
Gaylord was a homosexual. The assistant principal, with a copy of the student’s
statement, went to Gaylord’s home and confronted him with the allegation.
Gaylord admitted that he was a homosexual and attempted unsuccessfully to
have the assistant principal drop the matter. The school district board of
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directors subsequently dismissed Gaylord due to his status as a publicly known
homosexual. His status was contrary to Washington law which provided for
discharge for immorality.
Previous History: The trial court upheld the board’s dismissal of Gaylord and
the Supreme Court of Washington upheld the trial court’s decision.
Issue: Whether a school district employee, who has admitted to homosexuality,
can be dismissed for immorality pursuant to state laws which prohibit lewdness
and sodomy.
Holding: Teachers who engage in immoral acts or unlawful acts may be
dismissed if their acts impair their ability to fulfill their duties under state
statutes and impair their effectiveness.
Reasoning: The Washington Supreme Court found that the admission of
homosexuality “connotes illegal as well as immoral acts.” In order for the
immorality not to be vague, it must be shown that the admission of
homosexuality impaired Gaylord’s efficiency which is determined by his
relationship with his students, their parents, the school administration, and
fellow teachers. The court stated that “discharge for ‘sufficient cause’ has been
construed to require the cause must adversely affect the teacher’s performance
before it can be invoked as a ground for discharge.” The court distinguished
between latent homosexuality and overt homosexuality. Homosexuality “as
commonly understood is considered immoral.” “These acts -- sodomy and
lewdness -- were crimes during the period of Gaylord’s employment and at the
time of his discharge.” The court rejected Gaylord’s assertion that the school had
made his homosexuality known. Once it knew, the school district had to
discharge its duties under the law. Students and teachers objected to Gaylord’s
homosexuality. Teachers, students and parents could interpret the retention of
Gaylord as adult approval of homosexuality. Furthermore, Gaylord, as a teacher
in Washington, had, under statute, the obligation to teach principles of morality
and this obligation would be impaired by his admission.
Significance: Given appropriate conditions, boards of education have the right
to expect employees to be moral models for their students. The determination of
immorality, in order to pass the vagueness test, must be based on whether the
employee can perform his/her duties without impairment of efficiency.
Gebser v. Lago Vista ISD
U.S. Supreme Court 96-1866 (1998)
Facts: The plaintiff had been involved in an unreported sexual relationship with
her teacher, Waldrop. Prior to the reporting of the relationship, the principal of
the school had had only one other report against the teacher. Some parents had
complained about Waldrop's comments in class. Waldrop did not admit to
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having made the remarks; however, he apologized to the parents. The principal
cautioned Waldrop about making offensive remarks and reported the incident to
the school guidance counselor. Subsequently, a police officer caught Waldrop
and the student engaging in sexual intercourse. Waldrop was arrested and
subsequently dismissed by the Board. At the time of the incident, the Board had
not published an official policy for making complaints about sexual harassment.
Issue: Whether, and under what conditions, may a school district be “held liable
in an implied right of action under Title IX of the Education Amendments of 1972
. . . for the sexual harassment of one of the district’s teachers.”
Previous History: The District Court granted summary judgment for the School
District and “remanded the allegations against Waldrop to state court.” The
Circuit Court affirmed.
Holding: The Court concluded that the school district may not be held liable for
damages under Title IX “unless an official of the school district who at a
minimum has the authority to institute corrective measures on the district’s
behalf has actual notice of, and is deliberately indifferent to, the teacher’s
misconduct.”
Reasoning: Unlike other Civil Rights statutes, Congress has made no provision
for recovery of monetary damages in an implied right of private action under
Title IX. Cannon v. University of Chicago established that thee is a private right of
action under Title IX. Franklin v. Gwinnett County Public Schools further
established that a student could sue for monetary damages under Title IX. Title
IX creates a contract between the federal government and the school district. The
district knows that it cannot discriminate on the basis of sex if it is to continue to
receive federal funds. Whenever a complaint of sexual harassment emerges, the
federal agency gives the school district the opportunity to take corrective action.
The Court rejected the plaintiff’s contention that the district is liable for damages
under respondeat superior liability (the action was taken by an employee of the
school district and, without more, the district is liable for damages) and
constructive notice (the school district should have known about the harassment
and failed to uncover it or take action). Neither legal theory gives the school
district actual notice that misconduct has occurred. Under Title IX, the school
district has to have knowledge of the harassment and then must have failed to
take action (remains deliberately indifferent). In this case, the one previous
report to the principal about offensive remarks “was plainly insufficient to alert
the principal to the possibility that Waldrop was involved in a sexual
relationship with another student.”
Significance: This case further defines the conditions under which a school
district may be liable for monetary damages if an employee sexually harasses a
student. School should have posted clearly defined procedures for complaining
about sexual harassment. All reports should be taken seriously and must be
investigated thoroughly.
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Geller v. Markham
636 F.2d 1027 (2nd Cir. 1980)
Facts: Plaintiff, a 55-year-old teacher, who had had considerable experience in
New Jersey, was hired in West Hartford, Connecticut just before the beginning of
the school year. Shortly after hiring her, the Board notified her that they were
replacing her with a 25-year-old teacher who had not applied for the job until
September 10. The Board had passed a policy of recruiting teachers who were
below the sixth step of the salary schedule as a cost-cutting measure. The teacher
filed a class action in the District Court under the Age Discrimination in
Employment Act (ADEA).
Previous History: The District Court jury awarded damages. After the trial, the
judge denied equitable relief (reinstatement). The plaintiff also received pension
benefits and attorney’s fees.
Issue: Whether the termination of the teacher and replacing her with a younger
teacher pursuant to the Board policy violated the teacher’s rights under the
ADEA.
Holding: The Board violated the teacher’s rights under ADEA. The Court
remanded the case with directions to reconsider the award of pension benefits.
Reasoning: “A prima facie case of discriminatory impact may be established by
showing that an employer’s facially neutral practice has a disparate impact upon
members of the plaintiff’s class, in this case teachers over 40.” The plaintiff has
the burden of showing “by competent evidence that the employer’s
presumptively valid reasons are a cover up or pretext. The defendant failed to
show that the policy did not have a statistically disproportionate impact on the
group of teachers over 40. Second, the employer could not use cost-cutting as the
reason to justify the decision. “Accordingly, we conclude that Ms. Geller
established disparate impact by proving that she was subjected to a facially
neutral policy disproportionately disadvantaging her as a member of a protected
class. In order to make a case under ADEA, Ms. Geller was not required to show
that age discrimination was the sole cause of her discharge. Where an employer
acts out of mixed motives in discharging or refusing to hire an employee, the
plaintiff must show that age was a causative or determinative factor, one which
made a difference in deciding whether the plaintiff should be employed. The
Court upheld the trial judge’s determination that reinstatement was
inappropriate. The Court disagreed with the trial court’s refusal to consider Ms.
Geller’s request for lost pension benefits.
Significance: Policies that adversely impact suspect classifications (age, race,
religion, gender, national origin, etc.) may result in judgments against boards of
education. Boards should carefully comply with case law and federal statutes
and administrative regulations.
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GI Forum v. Texas Educ. Agency
(No. SA-97-CA-1278-EP W.D. Texas, 2000)
Facts: In 1984, the Texas Legislature passed the Equal Educational
Opportunity Act. The purpose was to create an accountability system
for Texas public school administrators, teachers, and students. Then,
in 1985, the Texas State Board of Education adopted a curriculum of
Essential Elements. Subsequently, the Board went ahead with its plans
to develop an objective, standardized test that would measure
mastery of the state-mandated curriculum. In 1987, the Texas
Education Agency (TEA) instituted the TEAMS high school
graduation exit test for 11th graders. In 1990,TEA replaced TEAMS
with the Texas Assessment of Academic Skills (TAAS), which was
constructed by National Computer Systems (NCS). NCS subcontracts
the development of the test items to Harcourt Brace Educational
Measurement and Measurement Incorporated. TEA involved teachers
and educational professionals in the development of the test. TEA
took steps to make sure that the educators represented an ethnically
diverse group of individuals from across the state. In addition, TEA
makes sure that subject-matter experts, review committees of teachers
and educators, test construction experts, and measurement experts
review the test items. Test items are then field-tested. The field test
review committee has the authority to remove items, including items
that have a disparate impact on minorities. TEA made sure that the
test met validity (curricular and content) and reliability standards.
Texas students begin taking the TAAS test in the 3rd grade. In the 10h
grade, students are given the TAAS exit exam. Students who do not
pass are given 7 more attempts to pass the test. Students who do not
pass the test do not graduate. TEA set the cut score at 70% after
initially setting it at 60%. School districts across Texas provide
remedial help for students who do not pass the TAAS exit exam. The
various administrations of the TAAS tests provide accountability
measures based on (1) the test scores, (2) attendance rates and (3)
dropout rates. Test scores are disaggregated -- All Students, White
Students, Hispanic Students , African American Students, and
Economically Disadvantaged Students. Schools and school districts
can be: Exemplary, Recognized, Academically
Acceptable/Acceptable, and Academically Unacceptable/LowPerforming. Minority students who had failed the TASS test and had
been denied graduation brought this suit.
Issue: The issue is whether the use of the Texas Assessment of
Academic Skills (TAAS) examination as a requirement for graduation
unfairly discriminates against Texas minority students or violates
their right to due process.
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Previous History: There is no previous legal history because the
District Court is the trial court in this case.
Holding: After 5 weeks of bench hearings before Judge Prado, the
Court held that the TAAS test does not have an impermissible adverse
impact on Texas' minority students and does not violate their right to
due process.
Reasoning: The Court is not ruling on the wisdom of using
standardized tests to measure what students should demonstrably
know at the end of 12 years of schooling. The test has not perpetuated
disparities for minorities; therefore, it is not fundamentally unfair. The
TAAS test measures what it is supposed to measure. It is aligned with
the state curriculum. Instruction is related to this curriculum. The test
has content and curricular validity and is reliable. Even when
disparities occur initially, remediation (targeted assistance) reduces
the disparities. Setting the cut score at 70 % was a reasonable decision.
The TAAS test is an objective measure that overcomes subjective
teacher evaluations. In effect, the TAAS test helps to eradicate
disparities for minorities. When presented with evidence from experts
that a sole criterion should not be used for making high-stakes
decisions, the Court noted that graduation in Texas is dependent on
students' earning a 70% of better in required high school courses.
There are also requirements related to attendance. Finally, students
have 8 opportunities to pass the test. The Court found that the TAAS
test measures mastery of knowledge and skills that Texas deems
important for high school seniors to possess. The use of the test is
related to a legitimate State goal. The Plaintiffs alleged that teaching to
the test was resulting in students getting a "bare elements' education.
The Court refused to substitute its judgment for that of TEA, a State
agency. "Test-driven instruction undeniably helps achieve this goal
(attainment of the required knowledge and skills)." The Court found
no evidence that the TAAS test had increased the number of dropouts.
The test does not deny due process because Texas gave adequate
notice that they would use the test as a requirement for graduation.
The use of the test is not arbitrary, capricious, or fundamentally
unfair. The TAAS test does not violate Title VI of the Civil Rights Act
of 1964. Even though it does have a disparate impact on minorities, it
does not adversely affect minority students in large numbers.
Significance: States and school systems that utilize high-stakes tests
for promotion and graduation will meet legal requirements if they (1)
use groups of teachers and experts who are ethnically diverse to
develop and field-test the items; (2) make sure that the test has content
and curricular validity and is reliable; (3) make sure that curriculum,
instruction, and assessment are aligned and that the content which is
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tested is taught; (4) assure that students have multiple opportunities
to pass the test; (5) design the process so that failure to pass the test
triggers opportunities for targeted assistance or interventions; (6)
notify students and parents that the test will have high-stakes
consequences; (7) do not use the test to perpetuate the effects of de jure
segregation; and (8) meet requirements related to IDEA and ESOL
regulations.
Gillett v. Unified School Dist. No. 276 Jewell County
605 P2d 105 (Sup. Ct. Kansas 1980)
Facts: During the 1976-77 school year, Gillett received a notice of nonrenewal.
The reason for the nonrenewal was based on the existence of criminal charges of
shoplifting. When Gillett filed a request for a hearing, the Board issued a
supplemental list of reasons, including inability to handle school funds properly,
excessive absences, improper use of sick leave, physical and mental instability,
and loss of community, student, and school board respect. This was the second
time Gillett had been charged with shoplifting. Gillett’s psychiatrist testified that
she had food allergies which triggered altered states of consciousness and,
therefore, she was incapable of forming any criminal intent.
Previous History: A hearing panel had recommended that the Board reverse it
previous decision of nonrenewal because there was insufficient evidence to
support the charges. The Board then unanimously voted to follow its previous
decision. The district court entered judgment in favor of Gillett and ordered
reinstatement with back pay.
Issue: Whether the Board had sufficient evidence to nonrew a teacher who had
been charged with shoplifting.
Holding: The Court ruled that it could not find in good conscience “that the
Board’s action was not taken in good faith, or that it was arbitrary, irrational,
unreasonable, or irrelevant to the school board’s objective of maintaining an
efficient school system for students in the school district.” The lower court was
reversed.
Reasoning: The Court reviewed the due process provisions of the Kansas
statutes. Causes for dismissal and nonrenewal are no longer contained in the
law; therefore, it is up to the Board to specify such causes. The Court may not
substitute its judgment. The Court is “limited to deciding whether: (1) The
agency or tribunal acted fraudulently, arbitrarily, or capriciously; (2) the
administrative order is substantially supported by evidence; (3) the tribunal’s
action was within the scope of its authority.” While believing that it is better for
school boards to adopt findings of fact (not required by Kansas statutes), the
Board did not prejudice the rights of the teacher by not doing so in this case.
With regard to the supplemental charges, if the teacher had the opportunity to
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rebut such charges, a hearing committee may consider such charges. The Board
concluded that the charges of shoplifting impaired Gillett’s teaching ability.
Significance: Boards may be better advised to withhold action on teacher
misconduct, when dismissal is contested, until the teacher has been found guilty
of the charges. Charges should be amended with care in disciplinary proceedings
for teachers and students. It is obviously better to clearly state all the charges up
front.
Gonzales v. McEuen
435 F.Supp. 460 (N.D. Ca 1977)
Facts: Eleven high schools students were suspended or expelled subsequent to
actions attributed to them that had led to a riot on October 14-15, 1976 at Oxnard
Union High School. They brought action under 42 U.S.C §1983 and the Due
Process Clause of the Fourteenth Amendment. After the Court entered a
restraining order on the suspensions and expulsions, the district issued corrected
notices of suspension to the students. Subsequent hearings by the Board led to
the expulsion of the students for the remainder of the 1976-77 school year.
Issue: Whether the Board had acted as an impartial, independent finder of fact
with regard to the suspensions and expulsions.
Previous History: The District Court was the trial Court. Initially, the Court had
issued a restraining order, which reinstated the students and gave the students
the right to make up the work they had missed.
Holding: The process utilized by the Board was fundamentally unfair.
Reasoning: The fact that the Board had prior knowledge of the situation did not
disqualify them as a decision-maker. In fact, as the Court noted, they had a
responsibility to be familiar with situations in the district. The fact that the
attorneys for the Board had performed dual roles as prosecutors for the Board
and also as advisors for the Board created the circumstance where the Board
might be tempted to decide issues with partiality to one party or the other. This
situation created an unacceptable risk of bias. The Board members were
defendants and had the potential to be subject to personal liability. In addition,
the fact that the Superintendent was present for at least part of the proceedings
could have hindered the free action of the Board because of the close working
relationship that existed between the Superintendent and the Board.
The Court made additional comments about the notice the students received.
The Court clearly pointed out that the notice must contain notice of (1) specific
charges, (2) the right to be represented by counsel, (3) the right to present
evidence, and (4) the right to confront and cross-examine adverse witnesses.
Significance: This Court came down on the side of impartiality when a Board is
involved in such proceedings. Board attorneys cannot perform “dual” roles. In
some jurisdictions, the Superintendent may be present to assist the attorneys in
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presenting the district’s case. These issues depend upon State law and Board
policy and procedure.
Good News Club et al v. Milford Central School
Cir. 2001
Facts: The Milford Central School, pursuant to New York law, enacted a policy
which authorized the use of school buildings under certain conditions. “First,
district residents may use the school for instruction in any branch of education,
learning or the arts. . . . Second, the school is available for social, civic, and
recreational meetings and entertainment events, and other uses pertaining to the
welfare of the community, provided that such uses shall be nonexclusive and
shall be open to the general public.” Two district residents applied to use the
school after hours for meetings of the Good News Club, whose activites
consisted in singing songs, hearing bible lessons, memorizing scripture, and
praying. The school district denied the application because the club’s activities
were equivalent to religious worship.
Issue: Whether Milford Central School violated the First Amendment speech
rights of the Good News Club and whether the infringement of rights was
justified by concerns that permitting use would violate the Establishment Clause.
Previous History: The District Court initially granted an injunction and the
plaintiffs used the school facilities until such time as the Court granted Milford’s
request for summary judgment. The Court of Appeals upheld the lower court.
Holding: The denial violated the speech rights of the plaintiffs and fears of
violating the Establishment Clause could not justify such an infringement.
Reasoning: The Court, first of all, determined that the District had created a
limited public forum. In the case of a limited public forum, the District does not
have to “allow persons to engage in every type of speech.” The state’s power it
limit speech is limited. The State and its agents cannot “discriminate against
speech on the basis of viewpoint. The discrimination against the plaintiffs
constitutes viewpoint discrimination. Milford’s policy permits teaching of morals
and character development. This is not different from the activities of the Good
News Club. The Court cited Lamb’s Chapel and concluded that the activities of the
Good News Club were not significantly different from the showing of the
Dobson films in Lamb’s Chapel. The Court also relied on Rosenberger where the
University of Virginia was not allowed to refuse funds to a student newspaper
which offered Christian viewpoints. “What matters for purposes of the Free
Speech Clause is that we can see no logical difference in kind between the
invocation of Christianity by the Club and the invocation of teamwork, loyalty,
or patriotism by other associations to provide a foundation for their lessons. It is
apparent that the unstated principle of the Court of Appeals reasoning in its
conclusion that any time religious instruction and prayer are used to discuss
morals and character, the discussion is simply not a pure discussion of those
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issues. According to the Court of Appeals, reliance on Christian principles taints
moral and character issues in a way that other foundations for thought or
viewpoints do not. We, however, have never reached such a conclusion. The
Court rejected Milford’s reliance on the Establishment Clause. The events
occurred on school grounds after school hours. Furthermore, the policy required
the activities to be opened to the public. There was no real danger that the public
would think that the School was endorsing religion or any particular creed. The
Court dismissed the School’s arguments regarding the coercion of children
because the community, in this instance, was the parents not the children. The
Court distinguished this from Edwards where Louisiana’s law mandating the
teaching of creationism whenever evolution was taught. “Obviously, when
individuals who are not schoolteachers are giving lessons after school to children
permitted to attend only with parental consent, the concerns expressed in
Edwards are not present.” The Court pointed out that “we cannot sday the danger
that children would misperceive the endorsement of religion is any greater than
the danger that they would perceive a hostility toward the religious viewpoint if
the Club were excluded from the public forum.”
Significance: The case is related to Lamb’s Chapel. Note that the use of facilities
was outside the normal school day. Most schools have created a limited public
forum and cannot discriminate against activities just because they are religious in
nature. Viewpoint discrimination is unconstitutional. Schools and school systems
are well advised to fashion policies which permit the use of facilities by outside
groups, including religious groups, under carefully crafted conditions.
Goss v. Lopez
419 U.S. 565 (1975)
Facts: Students in the Columbus, Ohio public schools brought his suit. The
students claimed that their constitutional right to due process had been violated
when they were suspended temporarily without a hearing prior to their
suspensions. The Ohio Code provides for free education for all students between
the ages of 6 and 21. Principals may suspend students for misconduct for up to
10 days or expel them. “In either case, the administration must notify the
student’s parents within 24 hours and state the reason for his action.” Suspended
students may appeal to the Board of Education. The suspensions of the 10
students who brought this action occurred during a period of widespread unrest
in the Columbus public schools.
Issue: Whether students may be suspended for 10 days or less without due
process of law.
Previous History: The District Court held that due process applies when
students are suspended from school for 10 days or less.
Holding: Suspensions of 10 days or less are not de minimis. Due process is
required before school officials can suspend students.
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Reasoning: Under Ohio law, the plaintiffs had a right to public education;
therefore, school officials must accord them due process before depriving them
of protected interests. “The authority possessed by the State to prescribe and
enforce standards of conduct in its schools although concededly very broad,
must be exercised consistently with constitutional safeguards. Among other
things, the State is constrained to recognize a student's legitimate entitlement to a
public education as a property interest which is protected by the Due Process
Clause and which may not be taken away for misconduct without adherence to
the minimum procedures required by that Clause.” The Due Process Clause also
“forbids arbitrary deprivations of liberty when a person’s good name and
reputation are at stake because of the government action. “A short suspension is,
of course, a far milder deprivation than expulsion. But, ‘education is perhaps the
most important function of state and local governments,’ and the total exclusion
from the educational process for more than a trivial period, and certainly if the
suspension is for 10 days, is a serious event in the life of the suspended child.
Neither the property interest in educational benefits temporarily denied nor the
liberty interest in reputation, which is also implicated, is so insubstantial that
suspensions may constitutionally be imposed by any procedure the school
chooses, no matter how arbitrary.” If due process applies, what process is due?
Due process requires notice and a hearing prior to suspension for 10 days or less.
A hearing consists in giving the student “an opportunity to explain his/her
version of the facts.” The Court notes, “We stop short of construing the Due
Process Clause to require, countrywide, that hearings in connection with short
suspensions must afford the student the opportunity to secure counsel, to
confront and cross-examine witnesses supporting the charge, or to call his own
witnesses to verify his version of the incident. Brief disciplinary suspensions are
almost countless. To impose in each such case even truncated trial-type
procedures might well overwhelm administrative facilities in many places and,
by diverting resources, cost more than it would save in educational effectiveness.
Moreover, further formalizing the suspension process and escalating its
formality and adversary nature may not only make it too costly as a regular
disciplinary tool but also destroy its effectiveness as part of the teaching process.
On the other hand, requiring effective notice and informal hearing permitting the
student to give his version of the events will provide a meaningful hedge against
erroneous action. At least the disciplinarian will be alerted to the existence of
disputes about facts and arguments about cause and effect. He may then
determine himself to summon the accuser, permit cross-examination, and allow
the student to present his own witnesses. In more difficult cases, he may permit
counsel. In any event, his discretion will be more informed and we think the risk
of error substantially reduced.
Requiring that there be at least an informal give-and-take between student and
disciplinarian, preferably prior to the suspension, will add little to the factfinding
function where the disciplinarian himself has witnessed the conduct forming the
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basis for the charge. But things are not always as they seem to be, and the
student will at least have the opportunity to characterize his conduct and put it
in what he deems the proper context. We should also make it clear that we have
addressed ourselves solely to the short suspension, not exceeding 10 days.
Longer suspensions or expulsions for the remainder of the school term, or
permanently, may require more formal procedures. Nor do we put aside the
possibility that in unusual situations, although involving only a short
suspension, something more than the rudimentary procedures will be required.”
Significance: Goss established that due process is required before students may
be suspended for 10 days or less. The nature of the due process required will
depend upon the severity of the consequences for the students. In general,
suspensions of 10 days or less require notice and an opportunity to be heard.
Longer suspensions usually require a formal hearing with the opportunity to
present witness, the opportunity to subpoena witness, the opportunity to
confront witnesses, and the right to counsel.
Green v. County School Bd of New Kent County
391 U.S. 430
May 27, 1968
Facts: Eleven years after the U. S. Supreme Court ordered desegregation of
public schools “with all deliberate speed” the Board of Education maintained
two schools under a freedom of choice plan. The Board adopted the state
freedom of choice plan after this suit was filed in order to remain eligible for
federal funds. One school was all black but some black students attended the
other predominantly white school. Busses crossed routes to deliver the students
to the schools because there was no residential segregation in the county. First
and eighth graders had to affirmatively choose a school. All other students were
automatically reassigned to the school they had attended the previous year if
they did not request a transfer. This was a suit for injunctive relief because the
petitioners alleged that Kent County still maintained a segregated school system.
Previous History: The District Court denied injunctive relief and gave the School
Board leave to submit an amendment to the plan with respect to employment
and assignment of employees on a racially nondiscriminatory basis. The Court of
Appeals affirmed the District Court’s approval of the freedom of choice plan but
remanded with regard to faculty. The Supreme Court vacated the Court of
Appeals decision insofar as it affirmed the District Court and the case was
remanded to the District Court.
Issue: Whether a school board may implement a freedom of choice plan which
does not have the effect of dismantling a once segregated school system.
Holding: The Supreme Court held that freedom of choice plans were not
unconstitutional per se. In the wake of Brown, the Supreme Court required
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District Courts to “consider problems related to administration, arising from the
physical condition of the school plant, the school transportation system,
personnel, revision of school districts and attendance areas into compact units to
achieve a system of determining admission to public schools on a nonracial basis,
and revision of local laws and regulations which may be necessary to solving the
foregoing problems. They will also consider the adequacy of any plans the
defendants may propose to meet the problems and to effectuate a transition to a
racially nondiscriminatory school system.” In reference to New Kent, the Court
said, “This deliberate perpetuation of the unconstitutional dual school system
can only have compounded the harm of such a system. Such delays are no longer
tolerable. . . The burden on a school board today is to come forward with a plan
that promises realistically to work, and promises realistically to work now.” The New
Kent freedom of choice plan cannot effectuate an unitary system since, in three
years, not “a single white child has applied to attend Watkins school, and
although 115 Negro children enrolled in the New Kent school in 1967. . .85% of
the Negro children in the system still attend the all-Negro Watkins school. In
other words the school system remains a dual school system.”
~90~
Legal Doctrine: “All deliberate speed” now means that school districts must
effectuate unitary school systems without further delay. Plans which are
delaying tactics will not be tolerated.
Significance: Enough is enough. The Court wants to see evidence of meaningful
desegregation immediately.
Grube v. Bethlehem Area School Dist.
550 F.Supp. 418 (E.D. Pa. 1982)
Facts: The school board had refused to allow a student with one kidney to
participate in football because of district concerns about his health, safety and
welfare. The plaintiffs requested a preliminary injunction based on Richard’s
rights under the Rehabilitation Act of 1973, §504. Section 504, as amended,
provides: “No otherwise qualified handicapped individual in the United States . .
. shall, solely by reason of his handicap, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.”
Previous History: This is the trial court.
Issues: Whether a school district can, consistent with Section 504, refuse to let a
student with one kidney participate in football because of concerns for his health
and welfare.
Holdings: Reviewing two previous decisions, Kampmeier v. Nyquist and Poole v.
South Plainfield Bd. of Educ., the court ruled in Richard’s favor. Section 504
permits individuals with disabilities to live as fully as possible “without
paternalistic authority deciding that certain activities are too risky for them
~101~
(Poole).” The court was reluctant to overturn the wisdom of local school officials;
however, in this case, the court did not accept the testimony of three doctors for
the board. Kampmeier and Poole were based on the fact that the boards believed
that “irreparable harm existed.” In this case, the court concluded that the
decision regarding Richard’s participation was not based on medical reasons.
Absent medical reasons, the doctors had made a recommendation based on the
safest course of action. The plaintiffs made a strong showing that they would
prevail on the merits; therefore, the judge granted a preliminary injunction.
Richard is a bona fide college prospect and football offers him the best
opportunity to attend college.
Legal doctrine: Decisions about athletic participation for individuals with
disabilities must be made on a case-by-case basis. Officials must weigh the
disabled person’s interest in participation against health and safety
considerations. The decision must be made on the best clinical, medical advice
available. A safe decision that is not based on sound medical advice does not
suffice.
Hartzell v. Connell
679 P.2d 35 (1984)
Facts: In response to Proposition 13 which limited taxation and other economic
factors, the Santa Barbara High School District considered two plans to reduce
expenditures by $1.1 million. The District provided a large variety of
extracurricular activities, including athletics and the fine arts. One plan would
have reduced activities from over 30 down to 8 and would have eliminated all
interscholastic competition at the ninth grade level. The second plan, which was
adopted, included a $25 fee for each athletic activity and a $25 fee for other
categories of extracurricular activities. The plan also included a fee waiver
provision for students who were unable to pay. Hartzell, a taxpayer with two
students, brought suit.
Issue: Whether charging a participation fee for high school extracurricular
activities violates the provisions of the California Constitution related to the free
school guarantee.
Previous History: The lower court held that the fee for participation did not
violate the California Constitution. The California Supreme Court reversed.
Holding: Charging fees for participation in extracurricular activities violates the
free school guarantee of the California Constitution.
Reasoning: There are two approaches to resolving this issue. One approach
holds that extracurricular activities are not part of the essential school program
and are not subject to constitutional protection. The right to participate is but a
privilege. The second approach, which the Court adopted, holds that
extracurricular activities are an integral part of current high school program;
therefore, the free school guarantees invoke constitutional protection against the
~102~
charging of participation fees. The Court quoted proponents of free public
education who believe that public education prepares student for active
involvement in political affairs, prepares them for active participation in
economic institutions, and serves as unifying social force. The citation from
Ralph Waldo Emerson is worthy of note:
We have already taken, at the planting of the Colonies, . . . the initial step,
which for its importance, might have been resisted as the most radical of
revolutions, thus deciding at the start of the destiny of this country, - this,
namely, that the poor man, whom the law does not allow to take an ear of
corn when starving, nor a pair of shoes for his freezing feet, is allowed to
put his hand into the pocket of the rich, and say, You shall educate me,
not as you will, but as I will: not alone in the elements, but, by further
provisions, in the languages, in sciences, in the useful and elegant arts.
The Court held that the California Constitution assured that students had the
right to participate in extracurricular activities without paying a fee. The Court
rejected the District’s argument that the fee waiver assured that all students
could participate. The Court held that the application of the waiver could
stigmatize students who were not able to pay. Participation in the school
program should be a function of what the community
chooses to provide and not what individual parents are able to pay. The fact that
the programs would have to be cut did not justify the use of fees.
Significance: This decision speaks loudly for free, appropriate education at
public expense. Other jurisdictions have chosen the first approach and do not see
extracurricular activities as an integral part of the school programs. In many
jurisdictions, school fees may well be unconstitutional. Some boards have framed
their policies to assure that no student will be denied participation because of
inability to pay.
Hazelwood School Dist. v. Kuhlmeier
484 U.S. 260 (1988)
Facts: Hazelwood High Schools students published the Spectrum, the school’s
newspaper. The sponsor gave the principal a copy of the next issue. The
principal decided that he would have a four-page paper published because he
deemed two articles unfit for publication in a school-sponsored publication.
First, there was a story about teen pregnancy in which actual students were
interviewed but not identified in print. The principal also felt that references to
sexual activity and birth control were inappropriate. The second article dealt
with divorce where on student said that she wished her father would spend
more time with the family. The principal felt that, prior to publication, the
parents in the divorce story should have an opportunity to tell their side of the
story. The paper was published in four pages instead of six and some incidental
articles were expunged in the process.
~103~
Previous History: The District Court held that no First Amendment violation
had occurred. The Court of Appeals reversed. The U. S. Supreme Court reversed
the Court of Appeals.
Issue: Whether the principal of Hazelwood High School could delete the articles
regarding teen pregnancy and divorce from the newspaper.
Holding: Schools may regulate student speech under certain conditions,
especially when the speech occurs in school-sponsored publications and
productions. Principals have the right of prior review of student publications
and productions.
Reasoning: (1) Students still cannot be punished for expressing their personal
views in school unless such expression would substantially disrupt the work of
the school; however, the First Amendment does not grant students rights which
are coextensive with the rights of adults. The Court deferred to the judgment of
school officials. (2) The Court dealt with whether the Spectrum could be
characterized as a forum for public expression. The school had created no such
forum. The newspaper was part and parcel of the curriculum of the school;
therefore, the school could regulate it. The Court even said that a “decision to
teach leadership skills in the context of a classroom activity hardly implies a
decision to relinquish school control over that activity.” (3) Whether the First
Amendment requires a school to tolerate particular student speech is not the
same question as whether a school must affirmatively promote particular student
speech. Educators have greater control in the second arena. The school may take
into account the emotional maturity of the students as well as advocacy of drugs,
alcohol, irresponsible sex, or other conduct inconsistent to the “shared values of a
civilized social order.” “It is only when the decision to censor a school-sponsored
publication, theatrical production, or other vehicle of student expression has no
valid educational purpose that the First Amendment is ‘so sharply implicated” . .
. as to require judicial intervention to protect students’ constitutional rights.”
Principal Rowley acted reasonably in refusing to allow publication of the articles.
Significance: After the Court had recognized students’ First Amendment rights
to speech in the school house in the 60s and 70s, Hazelwood signals a reasoned
approach to student speech in publications and productions.
Hearn v. Bd. of Public Educ.
No. 98-8390 (11th Cir. 1999)
Facts: Hearn, a teacher in Savannah, Georgia for many years, refused to take a
drug test after a police search dog alerted to her car in the school parking lot. The
search revealed the presence of “burned, hand-rolled cigarette in the ashtray.”
Tests indicated that it was marijuana. The principal confronted Hearn with the
findings and a police officer Mirandized her. Hearn refused to take a drug test, as
mandated by board policy, even after written notice by the principal. After
giving Hearn a hearing, the Board subsequently accepted the superintendent’s
~104~
recommendation to dismiss Hearn for insubordination and other good and
sufficient cause.
Issue: Whether evidence obtained by a police drug sweep of a school parking lot
can be used to dismiss an employee.
Previous History: The State Board of Education upheld the decision of the local
Board. The District Court then granted summary judgment for the Board. The
Circuit Court of Appeals upheld the District Court.
Holding: Evidence obtained by a police sweep of the school parking lot may be
used as evidence to dismiss an employee.
Reasoning: The Court rejected Hearn’s contentions that the search violated her
rights and that she was under no obligation to take a drug test. Hearn contended
that there was no reasonable suspicion under the Board policy because the search
was illegal. “The Board’s policy regarding searches of employee property is
legally irrelevant to the search of Hearn’s car. The Board’s policy applies only to
intra-school events, i.e., those involving only school officials and school
employees.” The evidence against Hearn was seized pursuant to drug sweep of
the parking lot conducted by police officials. It was a “law enforcement event.”
The Court noted that the Board policy could not “trump” the legal authority of
law enforcement officials. The Court rejected Hearn’s contention that the intradistrict policy applied because the campus police officer seized the contraband.
The Court said it could not “distinguish two legally distinct events in the one
sweep and search.” Second, the Court held that the “Constitution does not
provide Hearn with any expectation of privacy in the odors emanating from her
car. A dog’s sniff of a person’s property located in a public place is not a search
within the meaning of the Fourth Amendment.” “Furthermore, the alerting of a
drug-sniffing dog to a person’s property supplies not only reasonable suspicion,
but probable cause to search that property.” The Constitution allows a
warrantless search when the property is in a vehicle. Given reasonable suspicion,
the Board’s drug policy then came into play. When Hearn refused the test, “her
subsequent termination, therefore, did not violate either her contract of
employment nor the Board’s policy, and she is not due to be reinstated for these
reasons.” The Court also rejected Hearn’s contention that she had a right to reject
the drug test under the Fifth Amendment. “The production of bodily fluids is
non-testimonial.”
Significance: Employee’s should make sure that they do not possess nor use
substances prohibited under Board policies and state statutes when they are on
school grounds or at school activities.
Hendrick Hudson Dist. Bd. Of Educ. v. Rowley
458 U.S. 176 (1982)
Facts: Amy Rowley, a child with minimal residual hearing, had been provided
with an FM hearing aid in order to help her learn in the regular classroom. The
~105~
school also provided her with a tutor for the deaf for one hour per week. Her
parents, who were deaf, requested that the school provide her with an
interpreter. The school district refused to comply with the request.
Previous History: Both the District Court and the Circuit Court of Appeals held
that the Education of the Handicapped Act (EHA) required the school district to
provide Amy with an interpreter.
Issue: Whether EHA’s provision for free and appropriate public education
requires school districts to maximize the educational opportunities for children
who qualify under EHA.
Holding: The Court held that the EHA does not require the school district to
maximize the potential of qualified students.
Reasoning: The Court reviewed extensively the provisions of EHA and the
Congressional intent in passing EHA. Unlike the previous Court, this Court
found that the EHA did define free and appropriate education which consists of
“educational instruction specially designed to meet the unique needs of the
handicapped child, supported by such services as are necessary to permit the
child ‘to benefit’ from the instruction.” “Thus, if personalized instruction is being
provided with sufficient supportive services to permit the child to benefit from
the instruction, and other items on the educational checklist are satisfied, the
child is receiving a ‘free and appropriate public education’ as defined by the
Act.” The Court pointed out that it could not find any language in the ACT
which prescribed the exact level of education to be given to handicapped
children. “Mills and PARC both held that handicapped children must be given
access to an adequate, publicly supported education. Neither case purports to
require any particular substantive level of education.” The Court held that the
law required “no additional requirement that the services so provided be
sufficient to maximize each child’s potential ‘commensurate with the
opportunity provided other children.’” The Court concluded: “Insofar as a State
is required to provide a handicapped child with a ‘free appropriate public
education,’ we hold that it satisfies this requirement by providing personalized
instruction. Such instruction and support services must be provided at public
expense, must meet the State’s educational standards, must approximate the
grade levels used in the State’s regular education, and must comport with the
child’s IEP.” The Court cautioned lower courts not to substitute their notions of
sound education policy for statutory requirements.
Significance: IDEA 97 has clear definitions of free appropriate public education
for students with disabilities.
Hines v. Caston School Corp.
651 N.E.2d 330 (1995)
Facts: Jimmy Hines, a third grader began to wear an earring to school in spite of
the fact that the board had adopted a policy which forbade the wearing of
~106~
earrings by male students. The superintendent advised the parents that Jimmy
was to stop wearing the earring. Subsequently, the board revised the policy to
read, “Students are not to wear jewelry or other attachments not consistent with
community standards or that could pose a health or safety hazard to either the
student himself or to other students in his presence.” The parents were notified
of the new rules. Jimmy wore his earring the first day of school in 1992. When he
refused to remove the earring, the principal suspended him from class for 4 ½
days. The Board subsequently adopted the findings of a hearing examiner that
Jimmy be transferred to one of two schools in another township that accepted
students from Caston. These schools allowed male students to wear earrings.
Rather than transfer, Jimmy stopped wearing the earring.
Issue: Whether schools can adopt reasonable regulations on student dress
without contravening a fundamental right of a student to “the possession and
control of his own person in matters of personal appearance.”
Previous History: The trial court ruled in favor of the Caston School
Corporation. The Court held that the rule “was in keeping with the legitimate
educational goals of the Caston School District.”
Holding: The Board rule did not infringe the plaintiff’s liberty or equal
protection interests.
Reasoning: The Court dealt with the plaintiff’s liberty interest argument. There
has to be a rational relationship between the rule and the infringement of the
individual’s liberty interests. Rejecting some of the District’s arguments for the
rule, the Court did uphold the arguments that showed that “the enforcement of a
strict dress code was a factor in improving students’ attitudes toward school, and
that this change in attitude has led to improvements in school attendance, dropout rates, and academic performance.” Evidence also showed that earrings were
considered to be female attire according to community standards; therefore, the
rule “discourages rebelliousness.” These arguments established a “rational
relationship between the rule and ‘some purpose within the school’s
competence.’” The Court rejected arguments that earrings were related to gangs,
homosexuality, and safety. There was no evidence of that gangs existed in school
and there was no correlation between wearing an earring and homosexuality.
With regard to safety, the Court noted that females were not barred from
wearing earrings for safety reasons. The Court also rejected the plaintiff’s equal
protection arguments when it ruled that “the dress code prohibits all students
from wearing jewelry inconsistent with community standards.” “The
enforcement of community standards of dress to instill discipline has been
shown to be a legitimate educational function.”
Significance: Courts have long been divided over matters of student dress and
grooming. Dress has a higher potential for implicating constitutional protections.
Schools can develop rules that promote legitimate educational interests.
~107~
Ingraham v. Wright
430 U.S. 651 (1977)
Facts: Two junior high school students in Dade County, Florida brought this suit.
The students had been subjected to corporal punishment that was exceptionally
harsh. The school board had a regulation that specified that corporal punishment
was to be administered with a wooden paddle and only after the teacher has
consulted with the principal. Ingraham had been subjected to 20 blows with the
paddle that resulted in a severe hematoma which required medical attention.
Wright had been paddled on several occasions. On two occasions, the paddle
struck his arms. The petitioners claimed a violation of their civil rights under 42
U.S.C. §1983.
Issue: Whether corporal punishment violates students’ rights to not be subjected
to cruel and unusual punishment under the Eighth Amendment and whether
due process requires notice and a hearing prior to the imposition of corporal
punishment.
Previous History: The District Court found no constitutional basis for relief. The
Court of Appeals reversed. The Court of Appeals held that the “punishment was
so severe and oppressive as to violate the Eighth Amendment and that the board
policy violated the right to due process.
Holding: Use of corporal punishment does not violate the Eighth Amendment’s
prohibition against cruel and unusual punishment. Neither do the procedures in
question violate the Due Process Clause of the Fourteenth Amendment.
Reasoning: The Court noted that the use of corporal punishment to discipline
school children dated back to colonial times. The common law principle is that
“teachers may impose reasonable but not excessive force to discipline a child.”
The history of the Eighth Amendment indicates that judicial decisions related to
cruel and unusual punishment have been restricted to criminal punishment. The
Court sees no reason to extend the prohibition to the discipline of school
children. “The schoolchild has little need for the protection of the Eighth
Amendment. Though attendance may not always be voluntary, the public school
remains an open institution. Except perhaps when very young, the child is not
physically restrained from leaving school during school hours; and at the end of
the school day, the child is invariably free to return home. Even while at school,
the child brings with him the support of family and friends and is rarely apart
from teachers and other pupils who may witness and protest any instances of
mistreatment. The openness of the public school and its supervision by the
community afford significant safeguards against the kinds of abuses from which
the Eighth Amendment protects the prisoner. In virtually every community
where corporal punishment is permitted in the schools, these safeguards are
reinforced by the legal constraints of the common law. Public school teachers and
~108~
administrators are privileged at common law to inflict only such corporal
punishment as is reasonably necessary for the proper education and discipline of
the child; any punishment going beyond the privilege may result in both civil
and criminal liability.” The Fourteenth Amendment proscribes the deprivation of
life, liberty, or property without due process of law. The Court held that a
constitutionally protected liberty interest is a stake in this case. Analyzing the
competing interests in this case, the Court held that the child’s interest in
avoiding corporal punishment has had limitations historically. The Florida law
has the necessary safeguards. The principal and teacher first have to decide
whether corporal punishment is justified in any given situation. There are civil
and criminal remedies available when the corporal punishment is severe.
Burdening the schools with additional procedural safeguards when corporal
punishment is to be administered is unnecessary.
Significance: Many states and schools districts now prohibit the use of corporal
punishment in schools. Administrators should consult the law in their states and
the applicable board policies in their school districts.
In re Randy G.
Supreme Ct. CA 2001
Facts: A campus security officer, noticing two students in an unauthorized area,
became suspicious when one student “fixed his pocket very nervously.” Two
officers went to a classroom and asked Randy G. to step into the hallway. The
student denied having anything on him. The second officer requested permission
to do a pat down search to which the student consented. The search revealed a
knife with a locking blade in the student’s pocket. The student and his counsel
asked the juvenile court not to admit the evidence because the officers did not
have reasonable suspicion before they detained the student in violation of his
rights under the Fourth Amendment.
Issue: Whether campus security officers need reasonable suspicion before they
can detain a student and search the student.
Previous History: The Court of Appeals found that the officers had reasonable
suspicion; however, the Supreme Court declined to rule on the reasonable
suspicion argument because it would decide the case on other grounds.
Holding: “The broad authority of school administrators over student behavior,
school safety, and the learning environment requires that school officials have
the power to stop a minor student in order to ask questions or conduct an
investigation even in the absence of reasonable suspicion, so long as such
authority is not exercised in an arbitrary, capricious, or harassing manner.”
“Therefore, we conclude instead that the detentions of minor students on school
grounds do not offend the Constitution, so long as they are not arbitrary,
capricious, or for the purposes of harassment. . . . Reasonable suspicion—
~109~
whether called ‘particularized suspicion,’ ‘articulable and individualized
suspicion,’ ‘founded suspicion,’—need not be shown.”
Reasoning: In considering whether the student was detained, the Court noted,
“a minor at school, however, can hardly be said to be free to continue on his or
her way.” Following Vernonia, the Court said, “unemancipated minors lack some
of the fundamental rights of self-determination—including even the right of
liberty in the narrow sense, i.e., the right to come and go at will.” To respond
appropriately to disciplinary matters, school administrators need to have broad
discretion. Students in school are “subject to the ordering and direction of
teachers and administrators.” The Court concluded that asking a student to come
into the hallway and be asked some questions did not constitute a detention
under the Fourth Amendment. “In the absence of a Fourth Amendment claim,
relief, if at all, would come by showing that school officials had acted in such an
arbitrary manner as to deprive the student of substantive due process in
violation of the Fourteenth Amendment.” Following T.L.O. and Vernonia, the
Court concluded that individualized suspicion is not required in a seizure in the
school context. “Here, the ‘reasonableness inquiry cannot disregard the schools’
custodial and tutelary responsibility for children.”’ Expanding on the
reasonableness criterion, the Court said, “Those [school] officials must be
permitted to exercise their broad supervisory and disciplinary powers, without
worrying that every encounter with a student will be converted into an
opportunity for constitutional review. To allow minor students to challenge each
of those decisions, through a motion to suppress or in a civil rights action under
42 United States Code section 1983, as lacking articulable facts supporting
reasonable suspicion would make a mockery of school discipline and order. On
the other hand, the intrusion on the minor is trivial since, as stated, the minor is
not free to move about during the school day.” The Court declined “the
invitation to distinguish the power of school security officers over students from
that of other school personnel, whose authority over student conduct may have
been delegated to those officers.” “Of equal importance, were we to hold that
security officers have less authority to enforce school regulations and investigate
misconduct than other school personnel, there would be no reason for a school to
employ them or delegate to them duties relating school safety.”
Significance: This is a case from a state Supreme Court and does not have broad
applicability in other jurisdictions; however, the reasoning in the case seems to
indicate a stance in favor of broad discretion for school officials when safety is an
issue. In a footnote, the Court stated that the security officers did not act as law
enforcement officers. It does not say whether the security officials were certified
police officers. There is long-standing case law which assumes that certified
police officers act as law enforcement officials. When school security officers are
certified law enforcement officers, then the initial search and seizure should be
conducted by school administrators who are clearly not law enforcement officers.
~110~
Jackson v. Benson
(97-0270 Supreme Court, Wisc. 1997)
Facts: The plaintiffs filed this action claiming that the Milwaukee
Parental Choice Program (MPCP) violated the Establishment
Clause of the U. S. Constitution and the Wisconsin Constitution.
The plaintiffs also claimed that the MPCP violated the uniformity
provision and the public purpose doctrine of the Wisconsin
Constitution. The NAACP joined the action claiming that the
MPCP violates the Equal Protection Clause. The original MPCP
was amended in 1993. The amended MPCP removed the
limitation that private schools could not be sectarian. The
modified statute also allowed 15% of the MPS membership to
participate in the program. The legislature lessened the
supervision required of the State Superintendent. The amended
MPCP authorized payments to parents who then paid the private
schools.
Issue: Whether the MPCP violates the Establishment Clauses of
the U.S. and Wisconsin Constitutions, the uniformity provision
and the public purpose doctrine of the Wisconsin Constitution,
and the Equal Protection Clause of the U.S. Constitution.
Previous History: The Circuit Court has issued a preliminary
injunction staying the implementation of the amended program.
The Supreme Court split three-to-three and remanded the case to
the Circuit Court for further proceedings. The Circuit Court lifted
the preliminary injunction and allowed implementation except
for sectarian schools. The Circuit Court then granted the State's
motion for summary judgment. The Supreme Court reversed and
remanded.
Holding: The MPCP does not violate the provisions of the U.S.
and Wisconsin Constitutions.
Reasoning: "In the absence of a constitutional violation, the
desirability and efficacy of school choice are matters to be
resolved through the political process. This program may be wise
or unwise, provident or improvident from an educational or
public policy viewpoint. Our individual preferences, however,
are not the constitutional standard." The Court applied the Lemon
test. The program has a secular purpose because it provides "lowincome parents with the opportunity to have their children
educated outside of the embattled Milwaukee Public School
System." After an extensive analysis of Supreme Court decisions,
the Court concluded that "the amended MPCP, therefore, places
on equal footing options of public or private school choice, and
vests power in the hands of parents to choose where to direct
~111~
funds allocated for their children's benefit. We are satisfied that
the implementations of the amended MPCP will not have the
primary effect of advancing religion." The amended MPCP does
not involve the State in excessive entanglement. "In short, we
hold that the amended MPCP, which provides a neutral benefit
directly to children of economically disadvantaged families on a
religious-neutral base, does not run afoul of any of these three
primary criteria the Court has traditionally used to evaluate
whether a state educational assistance program has the purpose
or effect of advancing religion. Since the amended MPCP has a
secular purpose, does not have the primary effect of advancing
religion, and does not create excessive entanglement, it is not
invalid under the Establishment Clause." The amended MPCP
does not violate the benefits clause, the compelled support clause,
the uniformity clause, and the public purpose doctrine of the
Wisconsin Constitution. The Court summarily rejected the
NAACP's claim that the MPCP violated the Equal Protection
Clause.
Significance: Courts in other jurisdictions have held that programs similar to
MPCP violate the Establishment Clause.
Kelley v. Johnson
425 U.S. 238 (1976)
Facts: The respondent was a police officer and the president of the Suffolk
County Patrolmen’s Benevolent Association. He brought this action under 42
U.S.C. §1983 to contest the hair grooming standards which regulated the style
and length of hair and mustaches and prohibited beards and goatees. The
respondent claimed that the regulations infringed his First Amendment rights to
free expression and Fourteenth Amendment guarantees of due process and equal
protection.
Issue: Whether the regulations related to grooming violated the First and
Fourteenth Amendment rights of the respondent and other police officers.
Previous History: The District Court dismissed the respondent’s complaint
seeking declaratory and injunctive relief. The Court of Appeals for the Second
Circuit reversed and the District Court then took testimony and granted
declaratory and injunctive relief.
Holding: The grooming regulations do not violate the First and Fourteenth
Amendment rights of the respondent and other police officers.
Reasoning: The regulations do not deprive the respondent of liberty rights under
the Fourteenth Amendment. The liberty interest implicated here is not as
weighty as the interests related to “certain basic matters of procreation, marriage,
and family life.” The respondent is not just a citizen. He is member of the police
~112~
department which has a greater interest in regulating the grooming of its
members. Many regulations of the police department restrict the rights of the
officers. The hair regulations “cannot be viewed in isolation, but must be rather
considered in the context of the county’s chosen mode of organization of its
police force.” The issue revolves around the rational connection “between the
regulation, based as it is on the county’s method of organizing its police force,
and the promotion of safety of persons and property.” The regulations are not
arbitrary; therefore they do not violate the liberty interests of the respondent.
Significance: Like East Hartford, this case affirms the right of public agencies to
regulate the dress and grooming of its employees provided the agency can show
a rational relationship between the regulations and the efficiency of the agency.
Keyes v. School Dist. No. 1, Denver, Colo.
413 U.S. 189 (1973)
Facts: Petitioners, after seeking desegregation of schools in the Park Hill area,
then sought to desegregate the remaining schools in the Denver system.
Issue: Whether evidence of segregative intent in a substantial part of a school
district supports a finding of the existence of a dual system where there is no
previous evidence that the state has maintained a dual school system.
Previous History: The District Court held that a finding in the Park Hill area did
not support a finding of segregative intent in the district. The Court did,
however, follow Plessy v. Ferguson and ordered the district to provide facilities
which were substantially equal for segregated schools in the core city schools.
The Court of Appeals reversed the decision.
Holding: The District Court is to determine whether segregative intent in one
portion of the District is substantial enough to conclude that the District has
maintained a dual school system.
Reasoning: The lower Courts applied the wrong rule to the determination of the
issue. The Court did find evidence that the Board built a school in the “middle of
the Negro community west of park Hill.” The Board had also gerrymandered
student attendance zones and had made excessive use of portable classrooms.
Denver is triethnic. The Court should have considered "Hispanos" as well as
“Negroes” when determining the issue. “Where plaintiffs prove that the school
authorities have carried on a systematic program of segregation affecting a
substantial portion of students, teachers, and facilities within the school system,
it is only common sense to conclude that there exists a prejudice for a finding of
the existence of a dual school system.” The actions in a particular part of the
district obviously have an impact on the rest of the district. The District Court, on
remand, is to “decide in the first instance whether respondent School Board’s
deliberate racial segregation policy with respect to the Park Hill schools
constitutes the entire Denver school system a dual school system.” The fact that
the District invoked a neighborhood school policy is not dispositive when the
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District has been found to “have practiced de jure segregation in a meaningful
portion of the school district by techniques that indicate that the ‘neighborhood
school’ concept has not been maintained free of manipulation.”
Significance: This was the first desegregation case where there was not a
previous history of the state maintaining a dual school system.
Lamb’s Chapel v. Center Moriches School Dist.
508 U.S. 385 (1983)
Facts: New York State had passed a law which allowed the use of school facilities
for specified purposes, not including religious purposes, during nonschool
hours. The Center Moriches Board adopted regulations consistent with this law
and prohibited use of facilities by religious groups. Lamb’s Chapel, an
evangelical church, requested use of the school facilities to show a series of films
featuring Dr. James Dobson. The films addressed family values and childrearing.
The Center Moriches School District denied the application for use of the
facilities.
Issue: Whether the denial of access to the church violated the church’s First
Amendment rights of freedom of speech and whether allowing access to a
church would have violated the Establishment Clause of the First Amendment.
Previous History: The District Court ruled in favor of the School District. The
Second Circuit Court of Appeals affirmed the District Court. The U. S. Supreme
Court reversed the Court of Appeals.
Holding: The Supreme Court held that the application of the rule that proscribed
the use of facilities for religious purposes was unconstitutional.
Reasoning: The Court noted that he school district need not have permitted
after-hours use. When the district decided to allow access to facilities after hours,
it created a limited public forum; therefore, it had to allow access unless it could
distinguish valid reasons for disallowing the use. Distinctions based on subject
matter have to be reasonable and viewpoint-neutral. In Cornelius v. NAACP Legal
Defense Fund (473 U.S. 788, 1985), the Court stated, “Control over access to a
nonpublic forum can be based on subject matter and speaker identity so long as
the distinctions drawn are reasonable in light of the purpose served by the forum
and are viewpoint-neutral.” Treating all religious groups the same under the
regulations did not meet the viewpoint-neutral standard. The school district’s
policy was not value-neutral because it allowed use of the facilities to allow
presentation of views about family and childrearing, provided that the
presentations were not religious. Allowing the use of the facilities would not
have violated Lemon. The film series was to be shown during nonschool hours.
No one would have thought that the school was endorsing religion or any
particular creed. The use would not have constituted establishment of religion.
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Allowing use by a radical church would spark no significant community
controversy.
Significance: The Court makes itself clear. Speech may not be proscribed simply
because it is religious speech. Justice Scalia, writing a concurring opinion, took
exception to the reliance on the Lemon test. “Like some ghoul in a late-night
horror movie that repeatedly sits up in its grave and shuffles abroad after being
killed and buried, the Lemon test stalks our Establishment Clause jurisprudence
once again, frightening little children and school attorneys of Center Moriches
Union Free School District. Its most recent burial, only last Term, was, to be sure,
not fully six feet under: Our decision in Lee v. Weisman, 505 U.S. 577, 586-587
(1992), conspicuously avoided using the supposed “test” but also declined the
invitation to repudiate it. Over the years, however, no fewer than five of the
currently sitting Justices have, in their own opinions, personally driven pencils
through the creature’s heart. . . .”
Lee v. Weisman
505 U.S. 577 (1992)
Facts: The Providence, Rhode Island middle schools and senior high schools had
the practice of inviting ministers of various religions to give invocations and
benedictions at graduation exercises. School principals met with the clergy and
gave them a set of guidelines to follow regarding prayers at civic ceremonies.
Weisman, a parent of an eighth grader, sought a temporary and then a
permanent injunction against the practice. A rabbi delivered the invocation and
benediction at the graduation ceremony at Bishop Middle School where Deborah
Weisman was an eighth grader. Weisman sought the permanent injunction while
Deborah was in high school
Issue: Whether inviting ministers to give invocations and benedictions at
graduation exercises constitutes a violation of the Establishment Clause of the
First Amendment.
Previous History: The District Court refused to issue a temporary restraining
order. After the graduation with prayers by a rabbi had taken place, the District
Court enjoined the school district from continuing the practice. The Court of
Appeals affirmed.
Holding: The U. S. Supreme Court upheld the Circuit Court by holding that
“including clergy who offer prayers as part of an official public school
graduation ceremony is forbidden by the Establishment Clause.”
Reasoning: The principal, an agent of the state, had a significant role in inviting
the clergy and in giving them the set of guidelines to be followed in delivering
the graduation prayers. Attendance by the students and participation in a state
authorized religious activity were “obligatory.” Government involvement in this
case is pervasive. “Subtle coercive pressures exist.” These give students no real
alternative. Government officials cannot organize and conduct prayers at
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“obligatory” graduation exercises. “The First Amendment’s Religion Clauses
mean that religious beliefs and religious expression are too precious to be either
prescribed or proscribed by the State.” The practice puts “school-age children
who objected in an untenable position.” “The First Amendment protects speech
and religion by quite different mechanisms.” The lesson of history is that “what
might begin as a tolerant expression of religious views may end in a policy to
indoctrinate and coerce.” The Court is especially interested “with protecting
freedom of conscience from subtle coercive pressure in elementary and
secondary public schools.” “What to most believers may seem nothing more than
a reasonable request that the nonbeliever respect their religious practices, in a
school context may appear to the nonbeliever or dissenter to be an attempt to
employ the machinery of the State to enforce religious orthodoxy.” The practice
puts public pressure and peer pressure on students. In effect, graduation
becomes participation in a required religious exercise. The Court rejected the
argument that a student has a choice whether to participate in the graduation
ceremony. “To say that a student must remain apart from the ceremony at the
opening invocation and closing benediction is to risk compelling conformity in
an environment analogous to the classroom setting, where we have said the risk
of compulsion is especially high.”
Significance: The Court clearly states its interest in protecting elementary and
secondary students in public schools from coercive religious practices sanctioned
by the State.
Lemon v. Kurtzman
403 U.S. 602 (1971)
Facts: Pennsylvania and Rhode Island had passed legislation that provided
services and funds to private schools, primarily parochial schools in the
respective states. Rhode Island’s Salary Supplement Act provided a 15% salary
supplement for teachers in nonpublic schools in which the average per-pupil
expenditures on secular education were below the average in public schools. The
teachers could teach only secular subjects using the instructional materials
available in the public schools. Pennsylvania’s Nonpublic Elementary and
Secondary Education Act authorized the State Superintendent of Public
Instruction to purchase secular services from nonpublic schools. In Pennsylvania,
20% of the students were in nonpublic schools. The State could reimburse
nonpublic schools for teacher salaries, textbooks, and instructional materials.
Reimbursement was restricted to courses in designated secular subjects.
Issue: Whether the provision of public funds for nonpublic schools teachers and
the instructional materials that they use constitute a violation of the
Establishment Clause of the First Amendment.
Previous History: The federal District Court in Rhode Island held that parochial
school education was an integral part of the mission of the Catholic Church and
~116~
that the Act resulted in excessive entanglement and was, therefore, in violation of
the Establishment Clause. The Pennsylvania federal District Court granted the
State’s motion to dismiss for failure to state a claim for relief finding no violation
of the Establishment Clause or Free Exercise Clause.
Holding: The arrangements in both States involve excessive entanglement
between government and religion and violate the Religion Clauses of the First
Amendment.
Reasoning: Distinguishing this case from Everson v. Bd. of Educ. and Walz v. Tax
Commissioner (Churches do not have to pay taxes), the Court enunciated the
Lemon Test. The Test has three prongs: (1) The statute must have a secular
purpose; (2) The primary effect of the Act must neither advance nor inhibit
religion; and (3) The Statute must not foster excessive entanglement with
religion. There was no evidence that the legislative intent was to advance
religion. The Court found no need to determine whether the laws inhibited or
advanced religion. The case was decided on the entanglement prong. Admitting
that total separation is impossible to achieve, the Court analyzed the extent of
entanglement in both States. The Rhode Island statute involved excessive
entanglement. The schools were part and parcel of the mission of the Catholic
Church. Trying to determine whether teachers were being religiously neutral in
secular courses and monitoring the financial conditions would lead to excessive
entanglement. The Pennsylvania statute raised the same concerns regarding
doctrinal neutrality and financial monitoring that were present in Rhode Island.
The Court also looked at entanglement in the broader sense. The political
divisiveness created by the statute constituted entanglement. Finally, the Court
held that the progression from financial subsidies to the
establishment of state churches and state religion was much more present in
these cases than in Walz.
Significance: The Lemon Test created a standard that Courts used for almost 25
years. The standard was never as objective as its proponents purported. The
Rehnquist Court is moving away from the Lemon Test. The new test is coercion.
Marshall v. Kirkland
602 F.2d 1282 (8th Cir. 1979)
Facts: Four black female teachers who had been dismissed by the School District
brought a class action suit claiming that they had been terminated because of
racial and sexual discrimination. While the facts, which pertain to each teacher,
vary, they presented evidence sufficient to create a rebuttable presumption of
racial and sexual discrimination. Daisy Marshall, a social studies teacher had
been reassigned to teach remedial math and her performance had been found
wanting. Ms. Marshall was replaced by a black teacher. Barbara Davis, a physical
education teacher, had been assigned some social studies classes. Her
performance was deemed inadequate and she too was recommended for
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termination. Barbara Anderson replaced Barbara Davis. At the end of the first
year, she was given specific directives for improvement primarily in the area of
classroom management. Finally, Barbara Warfield was hired on a federal
program contract and the program received no further funding. Three white
teachers and one black teacher were hired to fill regular teaching positions.
Issues: (1) Whether the District Court was clearly erroneous in finding that the
Barton-Lexa School District had not discriminated against the teachers on the
basis of race. (2) Whether the District Court was clearly erroneous in treating the
two-day trial as a plenary submission and thus not affording the teachers the
opportunity to assert individual claims. (3) Whether the District Court was
clearly erroneous or contrary to law in determining that the District had not
discriminated on the basis of sex.
Previous History: The District Court, while finding that the teachers had created
a rebuttable presumption of racial and sexual discrimination, also found that the
School District had rebutted the presumptions with substantial evidence. The
Court of Appeals supported the findings on racial discrimination and the twoday trial. The Circuit Court reversed and remanded on the issue of sex
discrimination.
Holding: The ruling of the District Court on racial discrimination was not clearly
erroneous or contrary to law. The Court had followed appropriate procedure in
determining that the trail had been conducted consistent with established
procedures. The District Court erred in riling that the District had rebutted the
allegations of sex discrimination in light of the evidence supplied by the teachers.
Reasoning: The District Court found that the District had rebutted the
presumption raised by the teachers. There was no clear evidence of racial
discrimination. A black teacher had been hired to replace Ms. Marshall. Teachers
had been afforded opportunities to improve their performance. The
superintendent had written a recommendation for Ms. Davis in which he praised
her competence as a physical education teacher. The School District had not
rebutted the presumption of sex discrimination. The Fourteenth Amendment
gives citizens the right to be free from gender discrimination “unless a gender
classification serves important governmental objectives and is substantially
related to the achievement of those objectives.” Discriminatory purpose exists “if
employment decisions or policies in the public employment area are made in
part ‘because it would accomplish the collateral goal of keeping women in a
stereotypic and defined place.’” There was evidence that specialty positions
(positions with supplemental pay) and administrative positions were
disproportionately awarded to males. In fact, school officials, including the
superintendent, had testified that they felt that males were better suited to coach
male teams and to handle administrative responsibilities. "Coupled with
objective evidence showing a clear pattern of disproportionate representation in
administrative and specialty positions, the testimony of School Board President
Burney and former principal and superintendent Kirkland strongly suggest that
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the sex of a teacher was an important part of assignment and promotion
decisions in this area of the school district’s employment. At the very least, the
appellants made a prima facie showing that the decision makers in the school
district sought to maintain women teacher in a “stereotypic and predefined
place” in the school district and the district court clearly erred in finding
otherwise.”
Significance: School districts cannot make employment decisions based on race
or gender unless they can demonstrate that they have a legitimate reason for
doing so. The courts require strict scrutiny in these matters. Washington v. Davis
supported the use of a test which served a legitimate governmental purpose.
McDaniel v. Thomas
248 Ga. 632 (1981)
Rehearing Denied December 15, 1981
Facts: Parents, children, and school officials in districts which had a low property
tax base brought suit seeking declaratory judgment that the then current system
of financing public education in Georgia was unconstitutional under the equal
protection provisions of the Georgia Constitution. The Adequate Education
Program for Georgia (APEG) provided state funding for local districts. APEG
included “required local effort (RLE).” There was a disparity between the
wealthiest district (Heard County) which was 7.9 times wealthier than the
poorest district (Carroll County). Wealthier counties can generate greater
revenues per mill than poorer counties.
Previous History: The Superior Court judge in Polk County agreed with the
plaintiffs that the present system denied students in property poor districts equal
educational opportunities; however, the judge rejected the plaintiffs’ assertions
regarding the obligation of the state to equalize educational opportunity in the
state.
Issue: Whether the Georgia system of financing its public schools, under APEG,
violates the equal protection provisions of the Georgia Constitution because
there are disparities in the property tax base among Georgia counties.
Holding: The Supreme Court of Georgia held that the equal protection clause of
the State Constitution does not restrict local school districts from taking
measures to improve education in their districts. Nor does the equal protection
clause require the state to equalize educational expenditures among districts. The
Court further held that the then current system of financing public education did
bear some rational relationship to the legitimate state purpose to provide
educational funding for children of the State.
Reasoning: The Supreme Court did agree with the trial court that there is a
direct relationship between a district’s level of funding and educational
opportunities available to children. The rational relationship test, not the strict
~119~
scrutiny test, applies here. To wit, nowhere in the State Constitution is there a
requirement that the State equalize expenditures. Adequate education does not
“incorporate equal educational opportunity as a basic concept.” The Court held
that education per se is not a “fundamental right;” therefore, the Georgia public
school finance system is subject to the rational relationship test. APEG does
provide basic educational funding. “Education, perhaps even more than welfare
assistance, presents a myriad of ‘intractable economic, social, and even
philosophical problems.’”
Significance: Equalization of educational opportunities in Georgia comes from
legislative action rather than Court decree. Supplanting APEG, Quality Basic
Education (QBE) does make a reasonable attempt to “equalize” because
wealthier districts receive less funding under the formulas in QBE. The
Education Reform Act of 2000 takes additional steps toward “equalizing”
educational expenditures in Georgia.
Meyer v. Nebraska
262 U.S. 390 (1923)
Facts: Meyer was tried and convicted for having taught German at a parochial
school. In 1919, Nebraska had passed a law against the teaching of foreign
languages in the state until the student had “graduated” from the eighth grade.
Issue: Whether the state statute infringed the Fourteenth Amendment liberty
interests of the plaintiff.
Previous History: The Nebraska Supreme Court upheld the conviction. The U. S.
Supreme Court reversed.
Holding: The statute violated the Fourteenth Amendment rights of the plaintiff.
Reasoning: The Court defined liberty interests, “Without doubt, it denotes not
merely freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally enjoy those
privileges long recognized at common law as essential to the orderly pursuit of
happiness by free men.” Students have the right to acquire knowledge. Parents
have a duty to give their children “education suitable to their station in life.”
Latin, Greek, and Hebrew were not proscribed. German, French, Italian, and
“other alien speech” were proscribed. The Court said that the desire of the
legislature to “foster a homogeneous people with the American ideals prepared
readily to understand current discussions of civic matters is easy to appreciate.”
The state can require attendance at school and regulate the schools. The state
went beyond its powers in this case. The state’s reason for not allowing the
teaching of modern foreign languages did not outweigh the plaintiff’s liberty
interests.
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Significance: The action of legislatures is subject to review by the courts. Courts
will weigh the state’s interest against the constitutional interests of the citizens
who claim their rights have been impinged. Where fundamental interests, such
as liberty are involved, courts will apply the strict scrutiny standard to review
the legislative action.
Milliken v. Bradley
418 U.S. 717 (1974)
Facts: The petitioners sought a ruling that the Detroit Board of Education, an
agent of the State of Michigan, has perpetuated a racially segregated school
system. As the result of perceived state action, the District Court ordered a plan
which would involve 53 of the 85 outlying schools districts in three counties.
Issue: Whether Courts can order interdistrict remedies when there is evidence of
segregative intent in a metropolitan school district.
Previous History: The District Court and the Court of Appeals upheld the
interdistrict plan to desegregate the Detroit Public Schools and the 53 Districts in
three surrounding counties.
Holding: Courts cannot impose interdistrict remedies in order to effectuate a
unitary school system in a metropolitan area.
Reasoning: The Court found evidence of segregative intent in Detroit in that the
District had maintained optional attendance zones and had bused black students
past white schools. Previous case law had established that a constitutional
violation must occur before a remedy in equity can be applied. The Court
acknowledged the traditional structure of public education in Michigan.
Requiring an interdistrict plan would make the Court a legislature and this is not
the role of the judiciary. The Court concluded that the lower Courts had applied
a metropolitan remedy only because they could not achieve racial balance
without such a remedy. The lower Courts misread Swann when they approved a
plan that was directed toward achieving racial balance in Detroit and the 53
surrounding Districts. In order to dismantle district lines, the Courts must clearly
find that a violation in one district has had the effect of creating segregative
practices in another district. The Court held that there was no evidence of
“significant violation by the 53 outlying school districts and no evidence of
interdistrict violation or effect.” “We conclude that the relief ordered by the
District Court and affirmed by the Court of Appeals was based on an erroneous
standard and was unsupported by record evidence that the acts of outlying
districts effected the discrimination found to exist in the schools of Detroit.”
Significance: The Court limited the remedies which could be applied to bring
about unitary school systems. Henceforth, Courts would have to shape
intradistrict remedies unless they could establish clearly that outlying districts
had acted to effectuate segregation in metropolitan districts.
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Missouri v. Jenkins
515 U.S. 70 (1995)
Facts: This is a case which reflects litigation which had continued for 18 years. It
involved the Kansas City, Missouri School District. The federal courts had
fashioned remedies “to eliminate the vestiges of state-imposed segregation by
improving the ‘desegregative attractiveness’ of the district in the hopes of
attracting students to the district. The plan required the state and district to
spend large amounts of money in order to maintain a AAA rating. The school
district created magnet schools, renovated buildings, and paid its teachers higher
salaries under the plan. “The massive expenditures have financed … a 2,000
square foot planetarium; … a Model United Nations wired for language
translation; … 1,875-square-foot elementary school animal rooms for use in a zoo
project; . . . and numerous other faculties.”
Previous History: The lower courts had ordered the remedies described above.
Issue: Whether a District Court, in order to eliminate the vestiges of stateimposed segregation, can order remedies which go beyond the scope of the
Court’s power to effect intradistrict remedies for desegregation.
Holding: The District Court exceeded its authority to remedy state-imposed
segregation by fashioning remedies which were, in effect, interdistrict remedies.
The Court remanded the case with instructions to the lower court.
Reasoning: There are limits to a Court’s remedial powers. “The District Court’s
remedial plan in this case, however, is not designed solely to redistribute the
students within the KCMSD in order to eliminate racially identifiable schools
within KCNSD. Instead, its purpose is to attract nonminority students from
outside the KCMSD schools. But this interdistrict goal is beyond the scope of the
intradistrict violation identified by the District Court. In effect, the District Court
has devised a remedy to accomplish indirectly what it admittedly lacks the
remedial power to mandate directly: the interdistrict transfer of students.”
Following Milliken, the Court reasoned that in this case an interdistrict remedy is
not permissible. Milliken also provide a three-part framework: the desegregation
remedy must be determined by the scope of the constitutional violation, the
remedy must be related to the condition alleged to offend the Constitution, and
the remedy must account for the interests of state and local authorities to manage
their own affairs provided they are consistent with the Constitution. Indicia of a
segregated system are “student assignments, faculty, staff, transportation,
extracurricular activities, and facilities.” The salary requirements exceeded the
authority of the Court because they were directed toward an interdistrict
remedy.
Significance: Like Milliken, this case signifies the fact that the Courts will be
much less involved in fashioning remedies. Remedies, when fashioned, must
meet strict criteria in order to be defensible.
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Mitchell v. Helms
No. 98-1648 (June 2000)
Facts: Under Chapter 2 of the Education Consolidation and Improvement Act of
1981, the State of Louisiana loaned educational materials and equipment (library
and media materials and computer software and hardware) to private and
parochial schools. The amount schools received was based on enrollment. In
Jefferson parish about 30% of the Chapter 2 funds went to private and parochial
schools. The plaintiffs brought suit claiming that the provision of materials and
equipment violated the Establishment Clause of the First Amendment.
Issue: Whether the provision of materials and equipment under Chapter 2
violated the Establishment Clause of the First Amendment.
Previous History: Originally, the District Court held that the materials and
equipment loaned were “pervasively sectarian.” Subsequently, another District
Court judge reversed the order which the previous judge had issued. The 5th
Circuit Court of Appeals relied on Meek and Wolman to invalidate Chapter 2.
Holding: Providing materials and equipment to parochial schools under Chapter
2 does not violate the Establishment Clause of the First Amendment.
Reasoning: The Court modified the Lemon Test in Agostini. Entanglement is
“simply one criterion relevant to determining a statute’s effect.” The case was
decided using the first two criteria of the Lemon Test: (1) does the statute have a
secular purpose? And (2) does the statute have the primary effect of advancing
or inhibiting religion? The Court rejected the respondent’s arguments that
“direct, nonincidental aid to religious schools is always impermissible and the
provision of aid to parochial schools that is divertible to religious use is always
impermissible. The Court also noted that recent cases have discounted the
political divisiveness of entanglement. The aid provided has to be “secular,
neutral, and nonideological.” The Court considered only Chapter 2’s effect. The
provisions of Chapter 2 do not amount to government indoctrination. “To put it
differently, if the government, seeking to further some legitimate secular
purpose, offers aid on the same terms, without regard to religion, to all who
adequately further that purpose . . . , then it is fair to say that any aid going to a
religious recipient only has the effect of furthering that secular purpose.” The aid
program does not define its recipients by reference to religion. Providing aid
which reduces the cost of education in religious schools does not, under Agostini,
create an “incentive” for parents to choose a religious education for their
children. With regard to divertibility ( i. e. whether the provision of aid allows
religious schools to free up funds for other purposes), the issue is not
“divertibility of aid but rather whether the aid itself has an impermissible
content.” The aid is provided “on the basis of neutral, secular criteria that neither
favor nor disfavor religion, and is made available to both religious and secular
beneficiaries on a nondiscriminatory basis.” “Chapter 2 also satisfies the first
Agostini criterion. The program makes a broad array of schools eligible for aid
without regard to their religious affiliations or lack thereof.” Because Chapter 2
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satisfies both of the Agostini criteria, “it does not have the effect of advancing
religion.”
Significance: Downplaying the role of the third Lemon prong has practically
eliminated the entanglement prong from consideration in future First
Amendment cases. The Court has effectively lower the wall of separation
between Church and State.
Mt. Healthy City School District Bd. of Educ. v. Doyle
429 U.S. 274 (1977)
Facts: Doyle was an untenured teacher whose contract, which would have given
him tenure, was not renewed. Among procedural issues, Doyle contended that
his First and Fourteenth Amendment rights had been violated by the dismissal.
The culminating event was Doyle’s call to a local Cincinnati radio station
regarding the substance of the principal’s memo related to a new dress code for
teachers. Prior to the call, Doyle had been president of the local union. He had
been involved in an altercation which caused another teacher to slap him. When
the teacher refused to apologize to Doyle, both teachers were suspended. Other
teachers then walked out to protest the suspensions and the suspensions were
lifted. Doyle was in an altercation with a lunchroom worker over the amount of
spaghetti served to him. He referred to students who had not followed rules as
“sons of bitches.” He made an obscene gesture to a female student who would
not comply with cafeteria regulations when he was supervising the cafeteria. The
superintendent did not recommend Doyle for renewal. When Doyle asked for
reasons, he received a letter that referenced a “notable lack of tact in handling
professional matters which leaves much doubt as to your sincerity in establishing
good school relationships.” The letter from the principal went on to refer to the
call to the radio station and the obscene gesture to the female student.
Previous History: Doyle prevailed in his claim that he had been nonrenewed for
exercising First Amendment rights. The district court awarded damages. The
Court of Appeals affirmed. The Supreme Court vacated and remanded.
Issue: Whether a school district can show that it would have reached the same
decision, even in the absence of protected conduct, when it nonrenews an
employee who has shown by the preponderance of evidence that constitutionally
protected speech was a factor in nonrenewal.
Holding: Once an employee shows by the preponderance of the evidence that
he/she has exercised constitutionally protected speech, the burden then is on the
board to show that it would have nonrenewed the employee in the absence of
protected interests.
Reasoning: The courts must strike a balance between the employee’s
constitutionally protected expression in commenting on matters of public
concern and the state’s interest in the efficiency of the services it performs
through employees. Doyle had no tenure and the Board could have nonrenewed
~124~
him even if the incident of the phone call to the radio station had never occurred.
The Court warned that an employee could use a claim of protected speech to
frustrate the Board’s interest in assessing his performance record. There must be
a balance between employees’ First Amendment speech rights and the interest of
the Board of Education in the efficiency of the services its employees render.
Contentious behavior that damages close working relationships is not protected
conduct.
Significance: Employees and Boards of Education have interests which must be
balanced. Boards cannot ride roughshod over the rights of employees and
employees cannot exercise speech to the extent that it interferes with the mission
of the Board of Education.
Mueller v. Allen
463 U.S. 388 (1983)
Facts: By statute, Minnesota provided taxpayers a state income tax deduction for
expenses incurred in providing tuition, textbooks, and transportation for
students attending elementary or secondary schools. Elementary parents could
deduct up to $500. Secondary parents could deduct up to $750. Minnesota
taxpayers brought suit asserting that the statute’s provisions violated the
Establishment Clause of the First amendment.
Issue: Whether granting tax deductions to all parents who have students in
elementary and secondary schools violates the Establishment Clause of the First
Amendment.
Previous History: The District Court and the Court of Appeals both upheld the
constitutionality of the statute.
Holding: The Minnesota statute meets the requirements of the three-prong
Lemon Test; therefore, it does not violate the Establishment Clause.
Reasoning: The Court rejected the argument that “any program which in some
manner aids an institution with a religious affiliation” violates the establishment
Clause. The Court applied the Lemon criteria. First, the statute has a secular
purpose. “A State’s decision to defray the cost of educational expenditures
incurred by parents – regardless of the type of school their children attend –
evidences a purpose that is both secular and understandable.” The statute does
not have “the primary effect of advancing the sectarian aims of nonpublic
schools.” The deduction is one among many deductions and the Court has
always given deference to tax schemes which “equalize the tax burden of its
citizens and encourages desirable expenditures for educational purposes.” The
plan does not have the same features as the plan rejected in Nyquist. The plan
provides assistance via individual parents. The Court also noted that “private
educational institutions, and parents paying for their children to attend these
schools, make special contributions to the areas in which they operate.” The
provide competition for public schools and also reduce the overall tax burden.
~125~
With regard to excessive entanglement, the only involvement of the State is in
determining whether particular textbooks qualify for a deduction. This is not
excessive entanglement.
Significance: The Court in this case signaled a change in direction in First
Amendment Establishment Clause analysis.
New Jersey v. TLO
469 U.S. 325 (1985)
Facts: A teacher caught a freshman high school student and another student
smoking in the restroom. The student denied that she had been smoking. The
assistant principal then searched her purse. He found cigarettes, rolling papers
commonly used for making marijuana cigarettes, a list of people who owed the
student money, a pipe, plastic bags, and a substantial amount of money. When
the State brought delinquency charges against the student, the student and her
parents moved to suppress the evidence because they contended that the search
had been unconstitutional.
Issue: Whether school officials are subject to Fourth Amendment restrictions on
student searches.
Previous History: The Appellate Court affirmed the trial court’s finding that
there had been no Fourth Amendment violation. The New Jersey Supreme Court
reversed.
Holding: The Fourth Amendment’s prohibition of unreasonable searches applies
to school officials.
Reasoning: School officials are state officials and are subject to the restrictions of
the Fourth Amendment. Being in loco parentis does not exclude school officials
from the requirements of the Fourth Amendment. Reasonable depends upon the
circumstances under which the search is conducted. “Even a limited search is an
invasion of privacy.” “Although this Court may take notice of the difficulty of
maintaining discipline in the public schools today, the situation is not so dire that
students in the schools may claim no legitimate expectations of privacy.” The
Court then balanced the student’s interest in privacy with the school’s interest in
maintaining discipline. Warrants are not required in the school setting. “We join
the majority of courts that have examined this issue in concluding that the
accommodation of the privacy interests of schoolchildren with the substantial
need of teachers and administrators for freedom to maintain order in the schools
does not require strict adherence to the requirement that searches be based on
probable cause to believe that the subject of the search has violated or is violating
the law. Rather, the legality of a search of a student should depend simply on the
reasonableness, under all the circumstances, of the search.” Reasonableness
involves a two-pronged test; (1) Was the search justified at its inception? (2) Was
the manner in which the search was conducted "reasonably related in scope to
the circumstances which justified the interference in the first place?" In the school
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setting, reasonable cause is required as opposed to probable cause in criminal
searches outside the school setting. The fact that the girl was smoking in the
restroom gave the assistant principal reasonable cause to search the purse.
Having discovered the other items, the assistant principal was justified in his
search related to marijuana.
Significance: TLO sets the standards for searches by school officials. Reasonable
suspicion justifies a search whose scope is consistent with the school’s interest in
preserving the health, safety, and discipline of students. School officials do not
have carte blanche. The more intrusive the search the more weighty must be the
school’s interest in maintaining order and discipline. School officials are
probably best advised to refrain from intrusive searches of the person. A school
official of the same gender as the student should conduct the search when
possible.
N. Y. Times v. Sullivan
376 U.S. 254 (1964)
Facts: The New York Times ran a full-page ad, which claimed that officials in
Alabama had violated the rights of Blacks. Students who had demonstrated on
the state capitol steps were dismissed from college by the state board of
education. The article alleged that police had ringed the campus. The article
stated that Dr. King’s home had been bombed seven times. Several of the
statements were false. Montgomery City Commissioner Sullivan, who was in
charge of police operations, brought suit in Alabama State Court alleging that the
article had defamed him. While not specifically naming him, Sullivan felt that the
allegations would impinge his reputation; therefore, he had been defamed.
Issue: Whether the Alabama law, which allowed a finding of defamation because
the statements were libelous per se without proof of actual injury, infringed the
First Amendment’s freedom of speech and freedom of press protections.
Previous History: The State Supreme Court found for Sullivan and awarded him
$500,000 in damages. The U.S. Supreme Court reversed.
Holding: Under the First and Fourteenth Amendments, a State cannot award
damages to public officials for defamatory falsehood relating to their official
conduct absent proof of actual malice (with knowledge that the statements are
true or false or in reckless disregard of their truth or falsity).
Reasoning: Basically, allowing the award of damages without proof of actual
malice, in the case of public officials, would have a chilling effect on First
Amendment rights related to freedom of speech and press. The fact that the
expression was paid advertising did not remove constitutional protections.
“Factual error, content defamatory of official reputation, or both, are insufficient
to warrant an award of damages for false statements unless ‘actual malice’ –
knowledge that statements are false or in reckless disregard of the truth – is
~127~
alleged and proved.” The defendant was unable to produce evidence that would
support a judgment in favor of his claims of defamation.
Significance: This decision supports the necessity for people to be able to
criticize public officials in their official capacities. If someone knowingly and
with malice makes false statements about a public official, the public officials can
pursue an action for defamation.
Palmer v. Merluzzi
868 F.2d 90 (3rd Cir. 1989)
Facts: Palmer, high school student and football player, was enrolled in a course
called Careers in Broadcast Technology and worked in the school’s radio station.
After Palmer and three other students had worked at the station at night without
supervision, beer stains and a marijuana pipe were found at the station. In a
meeting with school officials, Palmer admitted to drinking beer and smoking
marijuana. The principal suspended Palmer from school for 10 days.
Subsequently, the Superintendent, Merluzzi, decided that a 60-day suspension
from football would be an appropriate penalty. The Board met with Palmer’s
father a half hour in a closed door session. The 60-day suspension was imposed.
Palmer appealed to the New Jersey Commissioner of Education. An
administrative law judge upheld the 10-day suspension but ruled that Palmer
had been denied due process with regard to the 60-day suspension from football.
Basically, the school administration and board had failed to give Palmer
appropriate notice regarding the penalty. The Commissioner accepted the ALJ’s
decision regarding the 10-day suspension but refused to accept the decision
regarding the 60-day suspension from football.
Issue: Whether a student has a liberty or property interest in participating in the
football program.
Previous History: The District Court upheld the school’s suspension from the
football program. It held that the student did not have a liberty or property
interest in participating in the football program.
Holding: The Court of Appeals did not rule on the liberty and property due
process analysis. Rather, the Court asked whether the single due process
proceeding accorded to Palmer was “appropriate given the fact that he faced,
and ultimately received, both of these sanctions.”
Reasoning: The Court held that due process is required when a school imposes a
10-day academic suspension and a 60-day athletic suspension. “Having
concluded that ‘some process’ was due, we turn to the issue of how much was
due.” According to Goss v. Lopez, a student has the right to notice of the charges
and an opportunity to tell his side of the story. There “need be no delay between
the time ‘notice’ is given and the time of the hearing.” Like Goss, this Court held
that further due process provisions were not necessary even when the
opportunity to play college football was at stake. The Court concluded,
~128~
“Although we acknowledge that the loss of the opportunity to impress college
scouts with one’s senior year play can have a significant adverse impact on one’s
chances for a college football career, we believe it would be disruptive of the
school’s educational process to require one disciplinary process for football
players and similarly situated athletes and another disciplinary process for
students.” The Courts also noted that the suspension did not violate his rights to
equal protection because participation in football is not a fundamental right.
“Palmers’ suspension was not based on a suspect classification.” The rational
relationship test, not the strict scrutiny test, applies in this case. The suspension
met the rational relationship test because the “state has very strong interests in
preserving a drug-free environment in its schools and in discouraging drug use
by students.”
Significance: This Court held that participation in extracurricular activities is not
a fundamental interest. Other courts have ruled that you cannot segment
participation in the educational process; therefore, a long-term suspension from
extracurricular activities could trigger additional due process safeguards.
Perry v. Sindermann
408 U.S. 593 (1972)
Facts: Sindermann had taught in the state college system of Texas for 10 years.
He had been employed for 4 successive years under a series of one-year contracts
as a professor at Odessa Junior College. The respondent got into controversial
situations because he was president of the Texas Junior College Teachers
Association. He was absent from teaching duties on several occasions because he
was testifying before the Texas Legislature. The Board of Regents then voted not
to reemploy him. They issued a press release “setting forth allegations of the
respondent’s insubordination.” The Board of Regents gave Sindermann no
official statement of the reasons for his nonrenewal. Sindermann entered court
stating that his First Amendment rights of free speech had been infringed. He
also alleged that his Fourteenth Amendment rights to due process had been
infringed.
Issue: Whether the Board of Regents had violated the respondent’s First
Amendment right to free speech and his Fourteenth Amendment right to due
process.
Previous History: The District Court granted summary judgment for the Board
of Regents. The Court of Appeals reversed the District Court. The Supreme Court
affirmed the Court of Appeals.
Holding: The Court restated its position that government agencies may not rely
upon constitutionally impermissible reasons for denying a person a benefit. The
“right to reemployment for the 1969-1970 academic year is immaterial to his free
speech claim.” The grant of summary judgment foreclosed any possibility of
determining the merits of his First Amendment claims. “The respondent’s lack of
~129~
formal contractual or tenure security in continued employment at Odessa Junior
College, though irrelevant to his free speech claim, is highly relevant to his
procedural due process claims.” To this point, the respondent had not shown a
deprivation of liberty or property. The respondent had alleged that the junior
college had created a de facto tenure program in its faculty handbook. “Teacher
Tenure: Odessa College has no tenure system. The Administration of the College
wishes the faculty member to feel that he has permanent tenure as long as his
teaching services are satisfactory and as long as he displays a cooperative
attitude toward his co-workers and his superiors, and as long as he is happy.”
The respondent also claimed that the Texas College and University System had
provided that a person who had been employed for seven years or more had
some form of tenure. A contract which clearly stated that the person had tenure
would give the person a right to continued employment unless “sufficient cause
is shown.” The absence of such a provisions does not foreclose the possibility of
tenure. Understandings such as those set forth in the faculty handbook, could
create de facto tenure. Proving that he had de facto tenure would not mean that
the respondent would automatically be reinstated. The college would have to
give him hearing on the reasons to protect his due process interests.
Significance: Employees may establish due process rights if common
understandings and provision of faculty handbooks create an expectancy of
reemployment. Effective July 1, 2000, new public school teachers in Georgia
cannot gain tenure. The Georgia Legislature, like legislatures in some other
states, abolished tenure when it passed the Education Reform Act.
Pickering v. Bd. of Educ.
391 U.S. 563 (1968)
Facts: Marvin Pickering, a teacher at Township High School, wrote a letter to the
editor of the local newspaper. Pickering was critical of the Superintendent and
Board regarding expenditures for athletics and the manner in which proposals to
raise new revenue for the construction of new schools had been handled.
Pickering asserted that the Superintendent had attempted to prevent teachers
from opposing the proposed bond issue. Some of the statements in the letter
were erroneous. The Board subsequently dismissed Pickering.
Issue: Whether a Board of Education may dismiss a public school employee who
speaks out on matters of public concern by submitting a letter to the editor of the
local newspaper.
Previous History: The Circuit Court of Will County affirmed the Board’s
dismissal of Pickering. The Supreme Court of Illinois affirmed the decision of the
lower court.
Holding: School districts may not dismiss employees who speak out on matters
of public concern when the action jeopardizes no close working relationships.
~130~
Reasoning: The Court began, “To the extent that the Illinois Supreme Court's
opinion may be read to suggest that teachers may constitutionally be compelled
to relinquish the First Amendment rights they would otherwise enjoy as citizens
to comment on matters of public interest in connection with the operation of the
public schools in which they work, it proceeds on a premise that has been
unequivocally rejected in numerous prior decisions of this Court.” The Court
must balance its interests in the efficiency of its schools with the employee’s First
Amendment rights. Pickering’s statements were directed toward no person with
whom he had a close working relationship. The false statements did not have
any impact on the operation of the schools. “What we do have before us is a case
in which a teacher has made erroneous public statements upon issues then
currently the subject of public attention, which are critical of his ultimate
employer but which are neither shown nor can be presumed to have in any way
either impeded the teacher's proper performance of his daily duties in . . . the
classroom or to have interfered with the regular operation of the schools
generally. In these circumstances we conclude that the interest of the school
administration in limiting teachers' opportunities to contribute to public debate
is not significantly greater than its interest in limiting a similar contribution by
any member of the general public.” Pickering’s statements cannot be shown to
have “impeded the teacher’s proper performance of his daily duties in the
classroom or to have interfered with the regular operation of the schools
generally.” The Court cites the defamation laws regarding public officials and
points out that they have been designed to promote First Amendment
expression. “In sum, we hold that, in a case such as this, absent proof of false
statements knowingly or recklessly made by him, a teacher's exercise of his right
to speak on issues of public importance may not furnish the basis for his
dismissal from public employment. Since no such showing has been made in this
case regarding appellant's letter, his dismissal for writing it cannot be upheld
and the judgment of the Illinois Supreme Court must, accordingly, be reversed
and the case remanded for further proceedings not inconsistent with this
opinion.”
Significance: Public school teachers have constitutional rights which they can
exercise. They must be speaking on matters of public concern. The statements
cannot damage close working relationship or the efficiency of the schools. This
case is different from Connick v. Myers (461 U.S. 138, 1983) where an employee in
the district attorney’s office was displeased with her reassignment to other
duties. The plaintiff’s survey of employees in the office regarding staff morale
was not a matter of public concern and did damage close working relationships.
~131~
Pierce v. Society of Sisters of the Holy Names of Jesus
and Mary
268 U.S. 510 (1925)
Facts: The Society of Sisters and Hill Military Academy sought injunctive relief
when Oregon attempted to enforce the Compulsory Education Act adopted in
1922. The Act in question required parents and guardians of a child between 8
and 16 years to send their children to a public school. The Society of Sisters and
Hill Military Academy conducted private schools that would have been
adversely affected by enforcement of the Act. Historically, the Ku Klux Klan and
the Scottish Rite Masons as part of a xenophobic reaction had promoted the
Oregon Act after World War I.
Previous History: The Appellate Court had granted injunctive relief to the
appellees. The appellants appealed to the U. S. Supreme Court.
Issues: (1) Whether the Act deprives the two schools of their Fourteenth
Amendment property rights without due process of law. (2) Whether the Act
interferes with the right of parents to choose where their children will go to
school and what type of education their children will receive.
Holding: The decrees of the lower court are affirmed. The Fourteenth
Amendment protected appellees against the deprivation of their property
without due process of law. The right to conduct schools was property as far as
the schools were concerned. The appellees’ schools were not harmful or
detrimental to the public and enforcement of the Act would deprive them of
patronage. The parents had a liberty interest in determining the upbringing and
education of their children. To require them to send their children to public
schools would deprive them of their liberty interests under the Fourteenth
Amendment. The suits were not premature because enforcement of the Act
would have caused irreparable harm. Citing Meyer v. Nebraska (262 U.S. 390,
1923), the Supreme Court ruled that the Oregon Act of 1922 unreasonably
interferes with the liberty of parents and guardians to direct the upbringing and
education of their children. There is no question here of the right of the state to
reasonably regulate and supervise schools and teachers and to require that
children attend school.
Legal Doctrine: The Fourteenth Amendment gives private schools property
rights in the conduct of their business. The Fourteenth Amendment also gives
parents and guardians liberty rights to direct the upbringing and education of
their children.
Significance: This decision established clearly the right of private schools to
operate and the right of parents to choose the type of education their children
would receive.
~132~
Plessy v. Ferguson
1167 U.S. 537 (1896)
Facts: The state of Louisiana had enacted a law which required railways within
the state to provide separate but equal facilities for the “white and colored
races.” Conductors on the railway had the authority to enforce the law. Plessy,
who was seven-eights Caucasian and one-eight African blood, boarded the train,
sat in the coach reserved for white passengers, and refused to move upon request
of the conductor. Plessy subsequently was ejected from the train and arrested in
Orleans parish.
Previous History: The criminal court in the parish of Orleans found Plessy
guilty. The Louisiana Supreme Court upheld the constitutionality of the state
law. Plessy appealed to the U. S. Supreme Court and was granted certiorari.
Issue: Whether the Louisiana statute permitting intrastate railways to maintain
separate but equal cars for whites and black violated the Thirteenth and
Fourteenth Amendments to the U. S. Constitution.
Holding: The statute did not violate the Thirteenth Amendment since the statute
did not create a condition of involuntary servitude upon members of the colored
race. The statute did not violate the Fourteenth Amendment because the
Amendment was enacted to ensure political equality and not social equality.
Reasoning: With regard to the Thirteenth Amendment, the Court relied on the
Civil Rights Cases and the Slaughter-House Cases. In the Civil Rights Cases, the
Court had held that the “individual, the owner of an inn, a public conveyance or
place of amusement, refusing accommodations to colored people, cannot be
justly regarded as imposing any badge of slavery or servitude upon the
applicant….” The Fourteenth Amendment was enacted “undoubtedly to enforce
the absolute equality of the two races before the law, but, in the nature of things,
it could not have been intended to abolish distinctions based upon color, or to
enforce social, as distinguished from political equality, or commingling of the
two races upon terms unsatisfactory to either. Laws permitting, and even
requiring, their separation, in places where they are liable to be brought into
contact, do not necessarily imply the inferiority of either race to the other, and
have been generally, if not universally, recognized as within the competency of
state legislatures in the exercise of their police power.” Earlier the Court had held
in Roberts v. the City of Boston that the school committee could establish separate
schools for white and “colored children.” The Court also referenced the
constitutionality of laws prohibiting intermarriage. Denying “colored” persons
the right to sit on juries did violate the Fourteenth Amendment (Strauder v. West
Virginia). However, states could enact railway laws regulating the seating of
persons within the state as opposed to interstate commerce. “While we think the
enforced separation of the races, as applied to commerce within the state, neither
abridges the privileges or immunities of the colored man, deprives him of his
property without due process of law, nor denies him equal protection of the
laws, within the meaning of the fourteenth amendment, we are prepared to say
~133~
that the conductor, in assigning passengers to the coaches according to their
races, does not act at his peril….” “…we cannot say that a law which authorizes
or even requires the separation of the two races in public conveyances is
unreasonable, or more obnoxious to the fourteenth amendment than the acts of
congress requiring separate schools for colored children in the District of
Columbia, the constitutionality of which does not seem to have been questioned,
or the corresponding acts of the state legislatures.” “Legislation is powerless to
eradicate racial instincts, or to abolish distinctions based upon physical
differences, and the attempt to do so can only result in accentuating the
difficulties of the present situation. If the civil and political rights of both races be
equal, one cannot be inferior to the other civilly or politically. If one race be
inferior to the other socially, the constitution of the United States cannot put
them on the same plane.”
Significance: It would be 58 years before the Court would reverse itself. In the
meantime, other cases supported segregation in the schools.
Plyler v. Doe
457 U.S. 202 (1982)
Facts: The Texas Legislature had enacted a law which denied reimbursement to
School Districts for students who had not been legally admitted into the United
States. This class action suit was filed on behalf of school-age Mexican children in
Smith County, Texas.
Issue: Whether the Texas statute violates Equal Protection Clause of the
Fourteenth Amendment by denying education to children who have not been
legally admitted to the United States.
Previous History: The District Court and Court of Appeals held that the statute
violated the Equal Protection Clause of the Fourteenth Amendment.
Holding: The Texas statute violates the equal Protection Clause of the Fourteenth
Amendment.
Reasoning: The Fourteenth Amendment states that “no State shall deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.” The Court held
that the Fourteenth Amendment applies to all persons, “including aliens
unlawfully present.” “Use of the phrase ‘within its jurisdiction’ thus does not
detract from, but rather confirms, the understanding that the protection of the
Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to
the laws of a State, and reaches into every corner of a State's territory. That a
person's initial entry into a State, or into the United States, was unlawful, and
that he may for that reason be expelled, cannot negate the simple fact of his
presence within the State's territorial perimeter. Given such presence, he is
subject to the full range of obligations imposed by the State's civil and criminal
laws.” The Court then decided what standard was appropriate to evaluate the
~134~
Equal Protection claim. When the state decides to offer a system of free and
appropriate education, it cannot arbitrarily exclude certain classes absent a
compelling reason for doing so. Even though these children are not a suspect
class, education is of utmost importance. “But more is involved in these cases
than the abstract question whether 21.031 discriminates against a suspect class,
or whether education is a fundamental right. Section 21.031 imposes a lifetime
hardship on a discrete class of children not accountable for their disabling status.
The stigma of illiteracy will mark them for the rest of their lives. By denying
these children a basic education, we deny them the ability to live within the
structure of our civic institutions, and foreclose any realistic possibility that they
will contribute in even the smallest way to the progress of our Nation. In
determining . . . the rationality of 21.031, we may appropriately take into account
its costs to the Nation and to the innocent children who are its victims. In light of
these countervailing costs, the discrimination contained in 21.031 can hardly be
considered rational unless it furthers some substantial goal of the State.” The
Court rejected the argument that, in passing the naturalization laws, Congress
intended to deny education to children who were in this country trough no fault
of their own. The fact that the education of students, who were not legal
residents, imposed a financial burden on the State of Texas and local school
boards did not sway the Court. The Court concluded, “If the State is to deny a
discrete group of innocent children the free public education that it offers to
other children residing within its borders, that denial must be justified by a
showing that it furthers some substantial state interest. No such showing was
made here.”
Significance: This case clearly established that States must provide education to
all students, even those who have become, through no fault of their own,
unlawful residents.
Rose v. The Council for Better Education
790 S.W.2d 186 (KY Supreme Court, 1989)
Facts: The Council for Better Education, representing 66 local school districts,
brought this action against the State of Kentucky alleging that the manner in
which Kentucky was funding its public schools was unconstitutional.
Issue: Whether the Kentucky public schools finance system adopted by the state
legislature was providing an “efficient system of common schools throughout
the state.”
Previous History: The trial court ruled that the Kentucky common school finance
system was unconstitutional and discriminatory. The General assembly had not
produced an “efficient system of common schools throughout the state.”
Holding: The system of financing public schools in Kentucky was
unconstitutional and discriminatory because it did not provide an “efficient
system of common schools throughout the state.”
~135~
Reasoning: Quoting Brown, the Court noted, “education is perhaps the most
important function of state and local government.” Education is “required in the
performance of our most basic public responsibilities, even service in the armed
forces. It is the very foundation of good citizenship. Today it is the principal
instrument in awakening the child to cultural values, in preparing him for later
professional training, and in helping him adjust normally to his environment. In
these days, it is doubtful that any child may be reasonably expected to succeed in
life if he is denied the opportunity of an education. Such an opportunity, where
the state has undertaken to provide it, is a right which must be made available to
all on equal terms.” The Supreme Court conducted an extensive review of the
trial court’s analysis of the facts surrounding the issues. Education is a
fundamental right in Kentucky. The Court reviewed the history of public school
finance in Kentucky, including the Minimum Foundation Program. The Court
cited evidence to support its ruling. The equalization tax rate had been so low
that only “a fraction of the 25 cents local tax is actually equalized.” The Court
noted Kentucky’s low standing in national educational comparisons and cited
this as direct evidence that the State was not funding education adequately. In
addition, the funding in the poorest districts was lower than the funding in
wealthier districts. “Students in property poor districts receive inadequate and
inferior educational opportunities as compared to those offered to the students in
more affluent districts.” “Can anyone argue that these serious disparities do not
affect the basic educational opportunities of those children in poorer districts?”
The Court rejected permissive taxes as a remedy because such taxes only
exacerbate the disparities. The Court defined an “efficient system of common
schools”: the General Assembly is mandated to create and maintain such a
system; the purpose of providing this service is vital and critical to the well-being
of the state; the system of common schools must be efficient; the system must
provide equal educational opportunities for all students; the state must control
and administer the system; the system must be substantially uniform; and the
system must be equal to and for all students. The system should be the sole
responsibility of the General Assembly and the tax effort should be
evenly spread. The resources provided throughout the state must be uniform.
The system must provide an adequate education. The system must be properly
managed. In essence, “each child, every child, in this Commonwealth must be
provided with an equal opportunity to have an adequate education.” The Court
ruled solely on the basis of the State Constitution. It did not find it necessary to
examine federal constitutional issues.
Significance: This decision has had a direct impact on Georgia in HB 1187. The
model for improving educational achievement and the funding thereof has
strong connections to what has been done in Kentucky, as well as other states
(Texas, North Carolina).
~136~
Bd. of Regents of State Colleges v. Roth
408 U.S. 564 (1972)
Facts: Roth had been hired on a one-year contract at Wisconsin State University–
Oshkosh. He was informed that he would not be rehired for the following year.
Roth had no right to continued employment under Wisconsin law. Wisconsin
statues provided that an employee could acquire tenure as a permanent
employee only after having served for four years under year-to-year contracts.
Employees who gain tenure continue their employment “during efficiency and
good behavior.” Roth claimed that his First Amendment rights were being
violated. He alleged that he was being nonrenewed because he has spoken out
against the University administration. He also contended that his Fourteenth
Amendment rights were being violated because the University officials had not
given him reasons for his nonrenewal and an opportunity for a hearing.
Issue: Whether the respondent had a constitutional right to a statement of
reasons and a hearing on the University’s decision not to rehire him for another
year.
Previous History: The District Court granted summary judgment for the
respondent. The Court of Appeals affirmed.
Holding: Roth did not have a right to due process when the University was
nonrenewing his contract after one year of service.
Reasoning: Because of the District Court decision, the free speech issue was not
before the Court. The respondent would have a right to due process if the
nonrenewal implicated his liberty and/or property interests. Liberty “denotes
not only merely freedom from bodily restraint but also the right of the individual
to contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, to establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally to enjoy those
privileges long recognized . . . as essential to the orderly pursuit of happiness by
free men.” (citing Meyer v. Nebraska) The University did not damage his liberty
interests because they “did not make any charge against him which would
damage his standing and associations in the community.” “In the present case,
however, there is no suggestion whatever that the respondent’s ‘good name,
reputation, honor, or integrity’ is at stake.” Nor did the University impose any
stigma upon him which might foreclose his freedom to gain other employment.
“Protection of property is a safeguard of the security of interests that a person
has already acquired in specific benefits.” “To have a property interest in a
benefit, a person clearly must have more than an abstract need or desire for it.”
Property interests are created by state law. Roth had no property interest in
continued employment. The lower court should not have granted summary
judgment because the respondent had shown no liberty or property interest. The
case was remanded for further proceedings consistent with this opinion.
Significance: Roth clarified the due process rights of employees who do not have
tenure.
~137~
Sain v. Cedar Rapids Community School District
Sup. Ct. Iowa, 2001
Facts: Sain, a student and basketball player, changed his English course during
the second trimester. As a prospective NCAA Division I college player, Sain had
to comply with the requirements of the NCAA Initial Eligibility Clearinghouse.
The Clearinghouse requires high schools to submit lists of core courses which are
then approved by the NCAA. The resulting list is known as Form 48-H. Bowen,
Sain’s counselor, suggested a course, Technical Communications. Bowen told
Sain that it was approved on 48-H. Sain then accepted a scholarship offer to play
basketball at Northern Illinois University. In the spring, the NCAA advised Sain
that the Technical Communication course did not qualify; therefore, he was 1/3
credit short of meeting the core course requirement and ineligible to participate
in basketball. The school district had failed to submit the course on the list of
courses for Clearinghouse approval. Sain brought suit against the counselor and
the school district.
Issue: Whether the counselor was guilty of negligent misrepresentation for
improperly advising the student and whether the District was guilty of
negligence for failing to submit the course for NCAA approval.
Previous History: The District Court grant summary judgment to the counselor
and District.
Holding: The District Court erred in granting summary judgment on the issue of
negligent misrepresentation on the part of the counselor. The District Court
properly granted summary judgment on the issue of the negligence of the
District.
Reasoning: The Court reviewed the history of educational malpractice. Courts in
general have rejected claims of educational malpractice because of the difficulty
in determining “an adequate standard of care, uncertainty in determining
damages, the burden placed on schools by the potential flood of litigation that
would probably result, the deference given to an educational system to carry out
its internal operations, and the general reluctance of courts to interfere in an area
regulated by legislative standards.” “The same difficulties of applying negligence
standards to claims of educational malpractice do not exist in this case.” The
Restatement (Second) of Torts supports a claim of negligence when supplying
false information results in pecuniary loss. There must be a duty to provide
information in order to establish a claim of negligent misrepresentation. The
Court determined that a high school counselor is in the business of supplying
information to others. “The tort of negligent misrepresentation is broad enough
to include a duty for a high school guidance counselor to use reasonable care in
providing specific information to a student when the guidance counselor has
knowledge of the specific need for such information and provides the
information to the student in the course of a counselor-student relationship, and
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the student reasonably relies upon the information under circumstances in which
the counselor knows or should have known that the student is relying upon the
information.” “The counselor had the duty to exercise reasonable care when
informing the student that a class will be approved by the NCAA.” “The tort of
negligent misrepresentation does not apply to the failure to provide information,
but to the disclosure of information.” Failure to submit the course would result
in it not being on the list and this would not create any reliance on the part of a
student and would “not make it foreseeable that harm would result to a student
by taking an unapproved course under the belief that the course was in fact
approved.”
Significance: This is a case from a state Supreme Court. The same judicial
analysis may not be applied in another jurisdiction. How does sovereign
immunity in a given jurisdiction impact the analysis? Giving information is a
ministerial duty and is not discretionary. This case should, in the least, remind
counselors that they have a duty of care to provide accurate information to
students. In schools where teachers are academic advisors to students, the school
administration should take care to make sure that teacher-advisors are properly
prepared and teacher-advisors should take their duties seriously.
San Antonio ISD v. Rodriguez
411 U.S. 1 (1973)
Facts: Texas provides for public education. Texas adopted the Minimum
Foundation Program in order to finance approximately 80% of the costs of
education in School Districts. The program was designed to equalize funding
among school districts and also required local districts to generate funds for
education. School districts had access to varying financial resources depending
on the taxable wealth of the school district. Edgewood School District could
generate $248 in per pupil expenditures while Alamo Heights, a wealthy District,
could generate $558 per student. The San Antonio School District brought this
suit on behalf of students whose families resided in poor districts.
Issue: Whether the Texas scheme of financing its public schools violates the
Equal Protection Clause of the Fourteenth Amendment because of the inequities
in per pupil resources among districts.
Previous History: The District Court held that wealth is a suspect classification
and that education is a fundamental right; therefore, the strict scrutiny standard
apples to analysis of this case.
Holding: The Texas scheme for financing its public schools bears a rational
relationship to the State’s purpose and, therefore, it is constitutional under the
Equal Protection Clause of the Fourteenth Amendment.
Reasoning: The Texas Constitution provided for the establishment of a system of
free schools. The case hinged on whether education is a “fundamental interest”
and whether as a result, wealth is a suspect classification which requires the strict
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scrutiny test under the Equal Protection Clause of the Fourteenth Amendment.
The Court wrote, “We must decide, first, whether the Texas system of financing
public education operates to the disadvantage of some suspect class or impinges
a fundamental right explicitly or implicitly protected by the Constitution,
thereby requiring strict judicial scrutiny.” The appellees made no showing that
the system “operates to the particular disadvantage of any class fairly definable
as indigent, or a composed of persons whose incomes are beneath any
designated poverty level. Second, the lack of resources has not resulted in any
absolute deprivation. “The system of alleged discrimination and the class it
defines have none of the traditional indicia of suspectness: the class is not
saddled with such disabilities, or subjected to such a history of purposeful
unequal treatment, or relegated to such a position of political powerlessness as to
command extraordinary protection form the majoritarian political process.” The
Court says that it is not denigrating the importance of public education;
however, they said that they had “no indication that the present levels of
educational expenditures in Texas provide an education that falls short.” In the
end, the Court held that the Texas scheme of financing education bore a rational
relationship to the State’s purpose. Having met this standard, the scheme was
constitutional under the equal Protection Clause of the Fourteenth Amendment.
Significance: This case effectively closed the door on federal judicial review of
state educational financing schemes. Subsequent litigation under state
constitutions and statutes has provided varied outcomes in the states. Many
states have required equalization in order to meet the standards set forth in the
state constitutions.
Santa Fe ISD v. Doe
No. 99-62 (2000)
Facts: The Santa Fe ISD had a policy which allowed the senior class to elect a
student to deliver an invocation at graduation. Subsequently, the Board also
passed a policy regarding “Prayer at Football Games.” Students could hold two
elections. The first would decide whether a student would deliver an invocation
before football games. In an election a week later, the students could then select
the student who would deliver the invocation. Mormon and Catholic parents
and students then challenged the policies in court.
Issue: Whether “petitioner’s policy permitting student-led, student-initiated
prayer at football games violates the Establishment Clause of the First
Amendment.”
Previous History: The District Court found that the policy coerced religious
belief in violation of the First Amendment. The Fifth Circuit Court of Appeals,
relying on precedent, ruled that schools could permit nondenominational prayer
at graduation exercises but not at athletic events.
~140~
Holding: The practice of allowing student-led, student-initiated prayer at
football games violates the Establishment Clause of the First Amendment.
Reasoning: The Court, relying on Lee v. Weisman, rejected the District’s
contention that the invocations were “private student speech, not public speech.”
The Board authorizes the invocations. They occur on public property. The policy
institutes a practice whereby majoritarian views will always dominate. “That is,
the majoritarian process implemented by the District guarantees, by definition,
that minority candidates will never prevail and that their views will be
effectively silenced.” The District “failed to divorce itself from the religious
content in the invocations.” The “policy, by its terms, invites and encourages
religious messages.” The entire context of a football game at school facilities
involves the school in the practice. The District also continued the practice of
having a “Student Chaplain.” The Court then rejected the District’s contention
that this prayer is not like the prayer in Lee because it does not “coerce students
to participate in religious observances.” Even though it is an extracurricular
activity, the game requires the attendance of players, cheerleaders, and band
members. “Even if we regard every high school student's decision to attend a
home football game as purely voluntary, we are nevertheless persuaded that the
delivery of a pregame prayer has the improper effect of coercing those present to
participate in an act of religious worship. For ‘the government may no more use
social pressure to enforce orthodoxy than it may use more direct means.’ As in
Lee, ‘[w]hat to most believers may seem nothing more than a reasonable request
that the nonbeliever respect their religious practices, in a school context may
appear to the nonbeliever or dissenter to be an attempt to employ the machinery
of the State to enforce a religious orthodoxy.’ The constitutional command will
not permit the District ‘to exact religious conformity from a student as the price’
of joining her classmates at a varsity football game. The Religion Clauses of the
First Amendment prevent the government from making any law respecting the
establishment of religion or prohibiting the free exercise thereof. By no means do
these commands impose a prohibition on all religious activity in our public
schools. . . Indeed, the common purpose of the Religion Clauses ‘is to secure
religious liberty.’ Thus, nothing in the Constitution as interpreted by this Court
prohibits any public school student from voluntarily praying at any time before,
during, or after the schoolday. But the religious liberty protected by the
Constitution is abridged when the State affirmatively sponsors the particular
religious practice of prayer.” [Citations omitted.] Reacting to the District’s
contention that judicial action was premature because no student had delivered
an invocation under the policy, the Court said, “Therefore, the simple enactment
of this policy, with the purpose and perception of school endorsement of student
prayer, was a constitutional violation. We need not wait for the inevitable to
confirm and magnify the constitutional injury.”
~141~
Significance: Once again, the Court interprets the Establishment Clause to
prohibit the coercion of belief among school students.
Seal v. Morgan
2000 FED App. 0358P (6th Cir. 2000)
Facts: Seal was expelled from high school after a hunting knife was found in the
glove box of his car at a high school football game. School officials searched the
car after reports that Seal and his companions had been seen drinking at the
game. The knife belonged to a friend of Seal. The friend had put the knife in the
glove box without Seal’s knowledge. Seal was expelled under the school’s Zero
Tolerance policy related to weapons. The principal suspended Seal. The system
hearing officer upheld the suspension and the Board upheld the
recommendation of expulsion.
Issue: Whether a Board may expel a student for violating its Zero Tolerance
policy related to weapons without ascertaining whether the student actually had
knowledge that the weapon has been placed in the glove box of his car.
Previous History: The District Court held that the Superintendent and board
were entitled to summary judgment on the Fourth and Fourteenth Amendment
claims of the plaintiff. The Court did not grant summary judgment on the sue
process claims and set the case for trial on the merits of the claim. The Court also
ruled that the Superintendent was not entitled to summary judgment on his
claim of qualified immunity.
Holding: “The Board may not absolve itself of its obligation, legal and moral, to
determine whether students intentionally committed the acts for which the
expulsions are sought by hiding behind a Zero Tolerance Policy that purports to
make the students’ knowledge a non-issue.” The Court affirmed the District
Court on the denial of summary judgment to the Board. The Court reversed the
District Court on the granting of summary judgment for Seal on the liability
issue. The Court reversed the District Court on the issue of granting summary
judgment for the Superintendent’s appeal on the issue of qualified immunity.
The Court remanded the case to the District Court for findings of fact on the due
process claim.
Reasoning: The Court discussed issues related to procedural and substantive
due process. It is generally recognized that the right to an education is not a
fundamental interest which merits strict judicial scrutiny; however, the Board’s
action must bear a rational relationship to legitimate state interests. The Court
said, “Suspending or expelling a student for weapons possession, even if the
student did not knowingly possess any weapon, would not be rationally related
to any legitimate state interest. No student can use a weapon to injure another
person, to disrupt school operations, or, for that matter, any other purpose if the
student is totally unaware of its presence. Indeed, the entire concept of
~142~
possession—in the sense of possession for which the state can legitimately
prescribe and mete out punishment—ordinarily implies knowing or conscious
possession.” The Court firmly rejected the Board’s contention that knowing
possession was a mere legal technicality. “We believe, however, that the Board’s
Zero Tolerance Policy would surely be irrational if it subjects to punishment
students who did not knowingly or consciously possess a weapon.” The Court,
in essence, held that the Board must make a reasonable effort to find out whether
the student knowingly possessed the contraband. “A school board, can, of
course, disbelieve the student’s explanation and conclude that the student
knowingly violated school policies. If that occurs, due process would be satisfied
as long as the procedures afforded the student were constitutionally adequate
and the conclusion was rational.” On remand, the District Court is to determine
whether the Board’s action was reasonably related to legitimate state purpose.
Significance: School administrators cannot hide behind Zero Tolerance Policies.
The Board and school administrators must accord students due process. The
student has the right to give an explanation. The school officials can accept or
reject that explanation provided that its final conclusion is based on the factual
situation in a given case. The Court went to the extent of posing a hypothetical
question. Suppose someone who had a vendetta against the valedictorian
planted a weapon in the valedictorian’s book bag. The Court firmly stated that
the Board could not expel a student under these hypothetical circumstances. The
material facts in any given case vary. School officials cannot abdicate their
responsibility to investigate situations thoroughly and must take all relevant
information into account before applying a Zero Tolerance Policy.
Sherman v. Community Consolidated School Dist. 21 of
Wheeling Tp.
980 F.2d 437 (7th Cir. 1992)
Facts: In 1979, Illinois passed a statute that required that elementary school
students recite the Pledge of Allegiance daily. The father of one student, Robert
Sherman, filed suit contending that the words “under God” violated the
Establishment Clause of the First Amendment.
Issue: Whether the State may require students to recite the Pledge of Allegiance
provided that students who do not wish to participate are excused from doing
so.
Previous History: The District Court granted summary judgment for the school
district.
Holding: If the school does not require any student who objects to participate, it
can require the daily recitation of the Pledge led by teachers.
Reasoning: If Illinois were requiring every student to participate in the Pledge of
Allegiance, it would run afoul of Barnette. The Court rejected the school district’s
contention that the statute did not compel students to participate because it
~143~
contained no penalty. “What the law requires of principals, teachers, and pupils
depends on the language it contains rather than the penalty it omits.” The Court
interpreted the statute to mean “by willing pupils” rather than “all pupils.” The
statue deals with patriotism. “Public schools help to transmit those virtues and
values. Separation of church from state does not imply separation of state from
state. Schools are entitled to hold their causes and values out as worthy subjects
of approval and adoption, to persuade even though they cannot compel, and
even though those who resist persuasion may feel at odds with those who
embrace the values they are taught.” If a pupil objects to the prescribed
curriculum, he/she is asserting “a right to accommodation of his political or
religious beliefs.” “All that remains is Barnette itself, and so long as the school
does not compel pupils to espouse the content of the Pledge as their own belief, it
may carry on with the patriotic exercises. Objections by a few does not reduce to
silence the many who want to pledge to the flag ‘and to the Republic for which it
stands.’” “Under God” does not render the statute unconstitutional. Presidents
issued Thanksgiving Proclamations and sent ministers to the Indians. We still
have Thanksgiving Proclamations, reference to the deity in the Pledge, and “In
God we trust” on our coinage. The Court stated that the Founding Fathers did
not consider ceremonial invocations of God as Establishment. “When it decided
Engel v. Vitale, the first of the school prayer cases, the [Supreme] Court
recognized this tradition and distinguished ceremonial references to God from
supplications for divine assistance.”
Significance: This case reaffirms Barnette. The Court also went to some length to
distinguish ceremonial references to the deity as different than state-mandated
prayer in the public schools. Many people have trouble with this distinction;
however, it is a fine example of the distinctions Courts make when confronted
with different material facts. Prayers in legislatures and other government bodies
and references to God on our money and in the Pledge are not the same as
requiring students to recite prayers and listen to bible reading in the schools.
Strout v. Albanese
98-1986 (1st Cir. 1999)
Facts: Maine has a law which allows tuitioning. For districts, which do not have
public educational facilities because of insufficient student density, the State will
pay grants directly to qualified private institutions provided that they are nonsectarian in nature. The plaintiffs claimed that the prohibition against payments
to sectarian schools violated their rights under the First Amendment.
Issue: Whether the tuitioning provision’s prohibition against payments to
sectarian schools violated the First and Fourteenth Amendments of the
Constitution.
~144~
Previous History: The District Court rejected the plaintiffs’ arguments based on
the Free Exercise Clause, the Establishment Clause, the Equal Protection Clause,
and the Due Process Clause.
Holding: The Circuit Court of Appeals upheld the District Court.
Reasoning: “We highlight the proposition that in some cases in which state
infringement of the Free Exercise Clause takes place, otherwise prohibited
conduct may be permitted if the state establishes an overriding societal interest.
Upholding the Establishment Clause, which is aimed at avoiding an entangled
church and state, is such a paramount interest. In the long run, an entanglement
of the two has been shown by history to be oppressive of religious freedom.” The
Court reviewed Supreme Court decisions. “Nevertheless, one thing is certain: the
Supreme Court has never permitted broad sponsorship of religious schools. In
those instances in which the Court has permitted funding to flow to religious
schools, it has been in the context of a targeted grant, available to a limited
population, for a specific purpose…. We find no authority in the Court’s
jurisprudence for now extending state support of sectarian schools from beyond
the class of particular, limited situations described above.” “The historic barrier
that has existed between church and state throughout the life of the Republic has
up to the present acted as an insurmountable impediment to the direct payments
or subsidies by the state to sectarian institutions, particularly in the context of
primary and secondary schools.” “Finally, we are at a loss to understand why
plaintiff-appellants believe that the Establishment Clause gives them a basis for
recovery. The Establishment Clause forbids the making of a law respecting the
establishment of any religion. There is no relevant precedent for using its
negative prohibition as a basis for extending the right of a religiously affiliated
group to secure state subsidies.” The plaintiffs also alleged that Maine’s hostility
toward religion violated their rights under the Equal Protection Clause. “Writ
simple, the state cannot be in the business of directly supporting religious
schools.” With regard to the Free Exercise arguments, the Court concluded that
the First Amendment is not implicated here. Finally, with regard to the Due
Process and Equal Protection claims, the Court rejected the plaintiff’s claims that
the Constitution required the state to directly pay for sectarian education.” The
Court also found the claim that the statute “denies parents the right to
communicate and instruct their children in the areas of religion, morals and
ethics which they cannot accomplish in non-sectarian schools to be meritless.”
Significance: The Court acknowledged that the Supreme Court in the future
could change the landscape with regard to payments to sectarian schools. At the
present time, this Court found no precedent in case law which would allow
direct payments to sectarian schools.
Swann v. Bd. Of Educ.
401 U.S. 1 (1971)
~145~
Facts: The Charlotte-Mecklenberg Board of Education served 84,000 students.
“Approximately 29% (24,000) of the pupils were Negro, about 14,000 of whom
attended 21 schools that were at least 99% Negro.” With the imperative from
Green, the petitioners asked for further relief. When the District Court found the
Board’s plan to be unsatisfactory, the Court appointed an expert to submit a
desegregation plan.
Previous History: The expert and the Board presented plans to the District
Court. The Court accepted “the Board’s plan, as modified for junior and senior
high schools, and the expert’s proposed plan for elementary schools.” The Court
of Appeals affirmed the “District Court’s order as to faculty desegregation and
secondary school plans, but vacated the order respecting elementary schools,
fearing that the provisions for pairing and grouping elementary schools would
unreasonably burden pupils and the board.” The case was remanded to District
Court for reconsideration and submission of further plans. The District Court
received two plans and ordered the Board to adopt a plan. Otherwise, the
expert’s plan would remain in effect.
Issue: What strategies for pupil assignment to schools may Courts impose upon
school systems in order to achieve unitary status?
Holding: Courts may impose pupil assignment strategies upon school systems in
order to achieve unitary status in school systems.
Reasoning: At this point in time, the Court concludes that “deliberate resistance
of some of the Court’s mandates has impeded good-faith efforts of others to
bring school systems into compliance.” “The objective today remains to eliminate
from the public schools all vestiges of state-imposed segregation.” When school
systems fail in this task, the Courts may fashion equitable remedies. The use of
mathematical ratios as a starting point in framing remedies is acceptable.
Inflexible requirements will not be accepted. Provision for an optional majorityto-minority transfer plan is an acceptable option. The “pairing and grouping of
noncontiguous school zones is a permissible tool and such action is to be
considered in light of the objectives sought.” “An objection to transportation of
students may have validity when the time or distance of travel is so great as to
either risk the health of the children or significantly impinge on the educational
process.”
Significance: At the time, Courts took an active role in order to bring about the
constitutional requirements of Brown I and II. School systems had resisted
desegregation with freedom of choice plans and other dilatory tactics. Today,
court-ordered bussing has been eliminated in some districts, such as DeKalb
County, Georgia. The resegregation that has recurred now tends to be based on
personal choice and residential patterns and not governmental action.
~146~
Thomas v. Atascadero USD
662 F.Supp.376 (1987)
Facts: Ryan Thomas had become infected with the AIDS virus as the result of
transfusions he had received after having been born premature. Following
School District guidelines, the Placement Committee recommended that Ryan be
placed in regular kindergarten classes. Ryan bit another student in an altercation.
Ryan was temporarily removed from the class. The Placement Committee
eventually recommended that Ryan be given a tutor at home because his biting
posed a danger to other students. A psychologist concluded that Ryan’s “level of
social and language skills and maturity was below those of his classmates.”
Ryan’s parents sought and eventually obtained a permanent injunction against
the exclusion of Ryan.
Previous History: This is the trial court and it granted a permanent injunction.
Issue: Whether an HIV student who bites other students may be removed from
regular classes.
Holding: The Rehabilitation Act precludes the removal of HIV students from
regular classes under these conditions.
Reasoning: At the time of the case, the CDC had issued guidelines for school
attendance for HIV infected students. The Placement Committee had used the
guidelines in reaching its decision. The Court noted, however, that there was no
evidence that the HIV virus could be transmitted by bites, even bites which
broke the skin. Ryan was other health impaired (OHI) and was entitled to
protection under Section 504 of the Rehabilitation Act.
Significance: Students with HIV are entitled to §504 protection. Where students
are unable to control themselves and where it is more likely that other students
would come into contact with blood and other bodily fluids as per the CDC
guidelines, school committees can alter the placement of the student. Each
student must be treated as an individual when making these determinations.
Consult district policies. Health related information is confidential; however, the
student’s teachers will be notified. Be cautious and use prophylactic measures
when dealing with all students where blood and other bodily fluids are involved.
Tinker v. Des Moines School Dist.
393 U.S. 503 (1969)
Facts: In order to object to the Vietnam War and to support a truce, students and
parents in Des Moines decided to fast during the holiday season. The students
also decided to wear black armbands to school during this period. School
officials, hearing of the symbolic speech, passed a regulation which would
require students to remove the armbands or face suspension. Three students
wore armbands and were suspended. Subsequently, the parents brought this
~147~
action seeking nominal damages and asking a permanent injunction against
disciplining the students.
Issue: Whether students have the constitutional right to symbolic speech, e.g.
wearing armbands.
Previous History: The District upheld the constitutionality of the school officials’
actions. The Eighth Circuit Court of Appeals, in an equally divided opinion,
upheld the District Court.
Holding: Absent material or substantial of the educational atmosphere, students
have the right to engage in symbolic speech.
Reasoning: First, the Court acknowledged that wearing armbands was symbolic
speech subject to the protections of the First Amendment. “First Amendment
rights, applied in light of the special characteristics of the school environment,
are available to teachers and students. It can hardly be argued that either
students or teachers shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate. This has been the unmistakable holding of
this Court for almost 50 years.” Citing Barnette, the Court said, “The Fourteenth
Amendment, as now applied to the States, protects the citizen against the State
itself and all of its creatures - Boards of Education not excepted. These have, of
course, important, delicate, and highly discretionary functions, but none that
they may not perform within the limits of the Bill of Rights. That they are
educating the young for citizenship is reason for scrupulous protection of
Constitutional freedoms of the individual, if we are not to strangle the free mind
at its source and teach youth to discount important principles of our government
as mere platitudes." This case did not involve “aggressive, disruptive or even
group demonstrations.” “Any variation from the majority's opinion may inspire
fear. Any word spoken, in class, in the lunchroom, or on the campus, that
deviates from the views of another person may start an argument or cause a
disturbance. But our Constitution says we must take this risk. . . .; and our
history says that it is this sort of hazardous freedom - this kind of openness - that
is the basis of our national strength and of the independence and vigor of
Americans who grow up and live in this relatively permissive, often
disputatious, society.” School officials must be able to forecast substantial
disruption as a result of student speech if they are to take any measures to curtail
that speech. The Court also noted that school officials did not ban all symbols of
political or controversial significance. Selecting a particular symbol for banning is
unconstitutional. “In our system, state-operated schools may not be enclaves
of totalitarianism. School officials do not possess absolute authority over their
students. Students in school as well as out of school are ‘persons’ under our
Constitution. They are possessed of fundamental rights which the State must
respect, just as they themselves must respect their obligations to the State. In our
system, students may not be regarded as closed-circuit recipients of only that
which the State chooses to communicate. They may not be confined to the
expression of those sentiments that are officially approved. In the absence of a
~148~
specific showing of constitutionally valid reasons to regulate their speech,
students are entitled to freedom of expression of their views.” The Court ended
by noting that it is important to protect constitutional freedoms in our schools.
Significance: This case established beyond a doubt that students have
constitutional rights and that school officials must respect those rights. Some
people feel that this decision opened the doors to unbridled student expression.
Fraser places the rights of students in proper perspective.
Vernonia School Dist. 47J v. Acton
515 U.S. 646 (1995)
Facts: The Vernonia School District instituted a policy of random drug testing for
student athletes after seeing considerable evidence that the drug culture in the
school was growing. Athletes were the leaders of the drug culture. The school
district noted an increase in drug related offenses and a number of injuries to
athletes that could be attributed to the use of drugs. Other deterrents had been
tried; however, the problems reached epidemic proportions. All athletes are
tested at the beginning of the season. In addition, they are randomly tested once
a week. School officials discretely monitor the collection of the urine samples. An
independent laboratory tests the samples for alcohol, “amphetamines, cocaine,
and marijuana.” The district may request tests for other drugs. Students who test
positive have the option of a six-weeks assistance program or suspension for the
remainder of the season and the next season. A second offense results in the
suspension option. A third offense results in suspension for the current season
and two subsequent seasons. Plaintiff Acton and his parents brought suit after
the student was not allowed to participate because he refused to take the drug
test. He and his parents objected to the testing.
Issue: Whether school officials may randomly test student athletes for drugs
when sufficient evidence of drug use warrants such a program.
Previous History: The District Court upheld the drug testing policy. The Court
of Appeals reversed and ruled the program unconstitutional under the Fourth
Amendment.
Holding: When school officials have sufficient cause to believe that drug use
among athletes is out of control they may institute a program of random drug
testing for student athletes.
Reasoning: The urine test constitutes a search under the Fourth Amendment. To
determine the reasonableness of the policy the Court had to balance the intrusion
into privacy against legitimate government interests in having a drug-free school
environment. Public schools exist in a special context; therefore, probable cause
is not the standard. Students have a decreased expectation of privacy in the
school setting. The students are committed to the temporary custody of the State
as schoolmaster. The school stands in loco parentis. The “nature of the power is
~149~
custodial and tutelary. Permitting a degree of supervision and control that could
not be exercised over free adults.” The Court noted that the locker room situation
as it exists gives student athletes a lesser expectation of privacy. Furthermore,
participation in athletics is voluntary. The Court then dealt with the relative
unobtrusiveness of the search procedures. The conditions under which male and
female students were tested met constitutional muster. “These conditions are
nearly identical to those typically encountered in public restrooms, which men,
women, and especially school children use daily.” These tests are identical for all
student athletes. The results are given to a limited number of school officials who
have a need to know. Requiring advance disclosure of medications a student
athlete is taking is not unconstitutional. The school officials produced evidence
that there was a drug culture in the school and that student athletes were leaders
in that culture. The compelling interest in deterring drug use is important. “In
the present case, moreover, the necessity for the State to act is magnified by the
fact that this evil is being visited not just upon individuals at large, but upon
children for whom it has undertaken a special responsibility of care and
direction. Finally, it must not be lost sight of that this program is directed more
narrowly to drug use by school athletes, where the risk of immediate physical
harm to the drug user or those with whom he is playing his sport is particularly
high. Apart from psychological effects, which include impairment of judgment,
slow reaction time, and a lessening of the perception of pain, the particular drugs
screened by the District's Policy have been demonstrated to pose substantial
physical risks to athletes.” The Court agreed that there was a state of crisis in the
school because of drug use. Athletes are role models. “Taking into account all the
factors we have considered above - the decreased expectation of privacy, the
relative unobtrusiveness of the search, and the severity of the need met by the
search - we conclude Vernonia's Policy is reasonable and hence constitutional.
We caution against the assumption that suspicionless drug testing will readily
pass constitutional muster in other contexts. The most significant element in this
case is the first we discussed: that the Policy was undertaken in furtherance of
the government's responsibilities, under a public school system, as guardian and
tutor of children entrusted to its care.” In this case the “search is one that a
reasonable guardian and tutor might undertake.”
Significance: The case is narrowly drawn. Before a school or school district could
institute a suspicionless search policy such as this, it must have ample evidence
of drug abuse among student athletes. In general searches have to be based on
individualized suspicion.
Wallace v. Jaffree
472 U.S. 38 (1985)
~150~
Facts: The State of Alabama had passed a series of statutes related to periods of
meditation, prayer, and silence in the public schools. Specifically, this case deals
with Alabama statue 16-1-20.1 that authorized a 1-minute period of silence in
public schools for “meditation or voluntary prayer.” In 1978, 16-1-20 established
a period of silence in all public schools for “meditation.” In 1981, 16-1-20.1
authorized a period of silence “for meditation or voluntary prayer.” In 1982, 161-20.0 authorized teachers to lead willing students in a prescribed prayer. The
District Court held that two of statutes were unconstitutional.
Issue: Whether the enactment of a statue that authorizes a moment of silence for
“meditation or voluntary prayer” violates the Establishment Clause of the First
Amendment.
Previous History: The District Court held that Establishment Clause of the First
Amendment does not prohibit Alabama from establishing a religion. The Court
of Appeals reversed. The Supreme Court upheld the Circuit Court of Appeals
Holding: 16-1-20.1 violates the Establishment Clause of the First Amendment.
Reasoning: The Court relied heavily upon the legislative history of the statute.
The sponsoring senator, both at the time the law was presented and in testimony
before the Court, stated that the purpose of the law was to restore religion to the
public schools. The Supreme Court affirmed the Court of Appeals ruling that a
State cannot establish a religion; therefore, the Court will not spend much time
on this issue. The Court cited Barnette in part, stating that no official can dictate
what is orthodox in religion. The first prong of the Lemon Test is involved here.
The statue had a nonsecular purpose.
Significance: This case is very significant because it gave the Justices the
opportunity to explore new approaches to interpreting the First Amendment.
Justices Powell and O’Connor concurred in separate opinions. It is possible for
states to enact statues that permit a moment of silence in public schools if the
legislative intent and the statute itself have a secular purpose. The endorsement
test does not preclude a government from acknowledging religion or taking
religion into account when enacting a statute. Chief Justice Rehnquist dissented.
He rejected Jefferson's wall of separation. Relying heavily on James Madison and
the changes in the First Amendment as it came to its present wording, Justice
Rehnquist argued the purpose of the Amendment was to prohibit the
establishment of a national religion and to prevent discrimination among sects.
The Northwest Ordinance referenced morality when it set aside land for public
schools. Washington proclaimed a nation day of prayer when he established
Thanksgiving. Congress has appropriated funds for Indian education and some
of the funds went to churches. The First Amendment prohibits a national religion
and a government preference among religious sects or denominations. The
application of the Lemon secular prong test has been uneven and inconsistent.
The Lemon Test is “a determined effort to craft a workable rule from a faulty
historical doctrine.” “Nothing in the First Amendment, properly understood,
prohibits any generalized ‘endorsement’ of prayer.”
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West v. Derby Unified School Dist. No. 260
10th Cir. 2000
Facts: Tensions existed between black and white students. Students wore the
Confederate flag and Malcolm X insignia. Other groups, the Ku Klux Klan and
the Aryan Nation, encouraged racism. The School District assembled a “350member task force comprised of parents, teachers, and other community
members to propose a course of action for the district.” The Board, upon the
recommendation of the task force, adopted a “Racial Harassment and
Intimidation” policy. In part, the policy read, “District employees and students
shall not at school, on school property or at school activities wear or have in their
possession any written material, either printed or in their own handwriting, that
is racially divisive or creates ill will or hatred.” Subsequently, the number of
racial incidents declined. T.W., who had signed a statement that he had read the
Handbook which included the aforementioned policy. T.W. became involved in
numerous disciplinary incidents during the school year. After T.W. called
another student “blackie,” he was suspended. Subsequently, the assistant
principal had a conference with T.W. where he once again reviewed the policy.
In April, T.W. drew a Confederate flag on a piece of paper. He admitted that he
had done so when confronted by the assistant principal. The assistant principal
suspended T.W. for three days.
Issue: Whether suspending T.W. for three days for drawing the Confederate flag
on a piece of paper, absent any evidence of harassment or intimidation, violated
the student’s First Amendment rights, whether the policy was unconstitutionally
vague and overbroad, whether the student’s Fourteenth Amendment right to
due process was violated, and whether the application of the Policy violated the
student’s right to Equal Protection.
Previous History: The District Court, reviewing the evidence, concluded that
T.W. “knowingly and intentionally violated the policy against possession of such
symbols at school.”
Holding: The Court held that the application of the policy had not violated the
student’s free speech rights. The student received due process. The policy is not
vague or overbroad. The student’s equal protection rights were not violated.
Reasoning: The Court at the outset rejected the plaintiff’s argument application
of the policy required a finding of intent to harass or intimidate. The Court
deferred to the authority of local school boards and exercised judicial restraint.
The Court rejected T.W.’s claim that not allowing him a “meaningful hearing” in
which he could show that his drawing did not harass or intimidate violated his
due process rights. T.W. knew that the content of the policy and intentionally
drew the Confederate flag. He was “well familiar with the policy” and “received
all the process due to him under the Fourteenth Amendment.” Equal Protection
was not violated because the District allowed the use of the Confederate flag in
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history books and other study materials. Noting that student’s right are not coextensive with those of adults, the Court said, “The evidence in this case,
however, reveals that based upon recent events, Derby School Officials had
reason to believe that a student’s display of the Confederate flag might cause
disruption and interfere with the rights of other students to be secure and let
alone.” With regard to the vague and overbroad claims, the Court ruled that the
policy allowed school officials the discretion to determine whether the student’s
conduct was willful among other considerations.
Significance: This case established that the material facts in a given situation are
determinative. If there had been no history of recent racial unrest, the policy
would not have met constitutional muster.
West Virginia State Bd. of Educ. v. Barnette
319 U.S. 624 (1943)
Facts: Following the Supreme Court decision in Minersville School Dist. v. Gobitis
(310 U.S. 586, 1940), the West Virginia State Board of Education enacted statutes
regarding “courses of instruction for the purpose of teaching, fostering and
perpetuating the ideals, principles, and spirit of Americanism, and increasing the
knowledge of the organization and machinery of government. In 1942, the Board
also adopted a resolution which ordered that the flag salute and the pledge of
allegiance be a regular part of the school program. Students who refused to
participate were to be charged with insubordination and suspended from school.
The appellees, members of the Jehovah’s Witnesses, brought suit. The practice
infringed their strict interpretation of Exodus 20: 4-5 which forbade them to
“make any graven image or any likeness of anything that is in heaven above.”
This included the flag.
History: The District Court “restrained enforcement” with regard to the
plaintiffs, the Jehovah’s Witnesses. The appeal went directly to the Supreme
Court.
Issue: Whether the State compel any “American citizen publicly to profess any
statement or belief or to engage in any ceremony of assent to” any statement of
belief.
Holding: The Court held that the State did not have sufficient reason to compel
the students to participate in the salute and pledge because the practice
compelled an expression of belief.
Reasoning: The Court reasoned that not compelling the practice would not
weaken the State. “Free public education, if faithful to the idea of secular
instruction and political neutrality, will not be partisan or enemy of any class,
creed, part or faction.” “The Fourteenth Amendment, as now applied to the
States, protects the citizens against the State itself and all its creatures - Boards of
Education not excepted.” “The very purpose of the Bill of Rights was to
withdraw certain subjects from the vicissitudes of political controversy, to place
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them beyond the reach of majorities and officials and to establish them as legal
principles to be applied by the courts. One’s right to life, liberty, and property, to
free speech, a free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to vote; they depend on the outcome
of no elections.” The Court rejected the argument that the practice was justified
by concerns for national unity. “We set up a government by consent of the
governed, and the Bill of Rights denies those in power any legal opportunity to
coerce that consent.” “If there is any fixed star in our constitutional constellation,
it is that no official, high or petty, can prescribe what shall be orthodox in
politics, religion, nationalism, religion, or other matters of opinion or force
citizens to confess by word or act their faith therein. If there are any
circumstances which permit an exception, they do not now occur to us.”
Significance: The Court clearly stated that educators cannot compel expression
of belief. This includes asking students to stand for the Pledge. Students who do
not wish to participate have no right to interfere with the rights of participants;
therefore, they can be disciplined for disruption.
Wilson v. Chancellor
418 F.Supp. 1358 (D. Oregon 1976)
Facts: Plaintiffs Wilson and Logue, teacher and student, sought declaratory and
injunctive relief form a school board policy. Wilson, a teacher at Molalla High
School, had invited a Communist to speak to his political science class. He
secured the principal’s approval and the approval of the Board. A Democrat, a
Republican, and a member of the John Birch Society had already spoken to the
class. When community pressure mounted against the Communist speaker, the
Board issued an order which banned “all political speakers.”
Previous History: This is the trial court.
Issue: Whether the Board order banning all political speakers violated the First
and Fourteenth Amendment rights of the student and teacher.
Holding: The Court held that the order violated the right of the student to hear
and also violated the teacher’s right to free expression. The Court also held that
the order was not appropriate in light of the circumstances of the school
environment. The Court held that it was impermissible for the Board to issue the
order solely because it feared someone would listen. Finally, the action violated
Equal Protection because speakers from other political parties had already
spoken to the class.
Reasoning: The order violated Logue’s right to hear. The Courts accord high
school teachers a lesser degree of academic freedom than it does college teachers.
“Honored in Germanic tradition and prominent in academic debates, the theory
[academic freedom] rarely surfaces in legal opinions. Moreover, even its most
enthusiastic advocates usually distinguish between the freedom accorded
university professors and that to be accorded elementary and secondary school
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teachers. It seems to be assumed that the former engage in the search for
knowledge and therefore should have far greater freedom than the latter, who
merely disseminate knowledge.” “A teacher’s teaching is expression to which the
First Amendment applies.” Keefe v. Geanokos (418 F.2d 359) upheld the academic
freedom claim of a teacher who had assigned his class an article from the Atlantic
Monthly “containing a word which ‘admittedly highly offensive, is a vulgar term
for an incestuous son.’” In Parducci v. Rutland (316 F.Supp. 352), the Court ruled
that the First Amendment rights of a teacher who had resigned after being
admonished not to teach Vonnegut’s short story, “Welcome to the Monkey
House” had been violated. In Sterzing v. Fort Bend ISD (376 F.Supp. 657), the
Court supported a teacher’s First Amendment claims. After the teacher had
stated his lack of opposition to interracial marriage, the Board fired him after he
repeatedly refused to confine his teaching to the assigned text. “It [Sterzing] held
“that a teacher has a substantive right to choose teaching methods which serve a
demonstrated educational purpose.” In this case, the order was not constitutional
because there was no showing that the speakers “impair high school education.”
The Board could not claim that political subjects are inappropriate in a high
school curriculum. The Board’s only reason, according to the Court, was to
appease angry parents. “The First Amendment forbids this; neither fear of voter
reaction nor personal disagreement with views to be expressed justifies a
suppression of free expression, at least in the absence of any reasonable fear of
material and substantial interference with the educational process.” The Court
also held that prior restraints, while not always unconstitutional per se, are
unconstitutional when they do not contain “criteria by which to define ‘political
speakers’ or procedural safeguards in any form. Finally, the order violated equal
protection by banning only political speakers from the high school. The ban was
discriminatory in its effect. The order silenced “absolutely the expression of an
unpopular political view.” “Finally, I am firmly convinced that a course designed
to teach students that a free and democratic society is superior to those in which
freedoms are sharply curtailed will fail entirely if it fails to teach one important
lesson: that the power of the state is never so great that it can silence a man
woman because there are those who disagree. Perhaps that carries with it a
second lesson: that those who enjoy the blessings of a free society must
occasionally bear the burden of listening to others with whom they disagree,
even to the point of outrage.”
Significance: Persons who are similarly situated must be treated in the same way.
Teachers and students have First and Fourteenth Amendment rights which the
Courts will guard from impermissible infringement.
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Wisconsin v. Yoder
406 U.S. 205 (1972)
Facts: The State of Wisconsin had tried and fined parents of Amish children who
refused to send them to high school. The Wisconsin compulsory attendance law
required school attendance until age 16.
Issue: Whether application of the Wisconsin compulsory attendance law
requiring children to be in school until the age of 16 interferes with the First
Amendment rights of Amish citizens.
Previous History: The trial court determined that the compulsory attendance law
did interfere with the rights of the defendants to act in accord with sincere
religious beliefs; however, the requirement of high school education until 16 was
a “reasonable and constitutional exercise” of governmental power. The
Wisconsin Circuit Court affirmed the convictions and upheld the lower court.
The Wisconsin Supreme Court sustained the respondents’ claims under the Free
Exercise Clause of the First Amendment and reversed the convictions.
Holding: The Court held that making Amish parents and students subject to the
compulsory attendance law did interfere with their rights under the Free
Exercise Clause of the First Amendment as made applicable to the States by the
Fourteenth Amendment.
Reasoning: The State has a compelling interest in requiring education until a
child reaches the age of 16; however, this right is by no means “absolute to the
exclusion or subordination of all other interests.” The Court has to balance the
state’s interest with the First Amendment rights of the respondants. The Court
noted that the Amish way of life, which they had practiced for almost three
centuries, was based on their religious convictions. Furthermore, requiring
attendance beyond the eighth grade would expose Amish children to values
inconsistent with their traditions and would undermine the Amish way of life.
The Amish expose their children to a form of vocational education related to
farming. Not having a secular education until age 16 would not unduly burden
society because the Amish are self-sufficient. The Court rejected the Parens patriae
argument of the State whereby the State contended that it must protect the rights
of Amish children. Given the strength of the Amish community and the informal
vocational education available to Amish children, there is no evidence that not
requiring education beyond the eighth grade would impair the physical or
mental health of the child or result in an inability to discharge civic duties.
Significance: The Court balanced the interests of the State in having an educated
citizenry with the First Amendment rights of the Amish to maintain their
community based on religious beliefs. Objections to formal compulsory
education must be based on sincere, long-standing religious beliefs. Notice that
the Court held that the vocational education afforded to Amish children
equipped them to lead productive lives without becoming burdens on society.
~156~
Wood v. Strickland
420 U.S. 308 (1975)
Facts: Respondent high school students brought this suit under 42 U.S.C. §1983.
They had driven across the border into Oklahoma and purchased two bottles of
malt liquor which they then used to spike the punch at an extracurricular
meeting for parents and students. The sponsor, ten days later, heard of the
spiking and confronted the girls. After the girls admitted the prank to the
sponsor, they went to the principal and admitted what they had done. The
principal suspended them for two weeks, subject to the decision of the school
board. During the board meeting, the superintendent received a phone call
informing him that one of the girls had been in a fight at a basketball game. The
principal and sponsor then withdrew their recommendation of leniency. The
Board expelled the girls from school for the remainder of the semester.
Previous History: The District Court directed verdict for the school board on
grounds that they were “immune from damage suits absent proof of malice in
the sense of ill will toward the respondents.” The Circuit Court of Appeals found
that the respondents’ due process rights had been violated and reversed the
District Court.
Issue: Whether school officials are immune from liability if they “knew or should
have known” that they, in their official capacities, were violating the
constitutional rights of the students.
Holding: School officials acting in their official capacities are liable for damages
if they “knew or should have known” that they were violating the constitutional
rights of students.
Reasoning: School officials do not have absolute immunity in dealing with
student issues. “To be entitled to a special exemption from the categorical
remedial language of §1983 in a case in which this action violated a student’s
constitutional rights, a school board member, who has voluntarily undertaken
the task of supervising the operations of the school and the activities of the
students, must be held to a standard of conduct based not only on permissible
intentions, but also on knowledge of the basic, unquestioned constitutional rights
of his charges.” “A compensatory award will be appropriate only if the school
board member has acted with such an impermissible motivation or with such
disregard of the student’s clearly established constitutional rights that his action
cannot reasonably be characterized as being in good faith.” The Board made its
decision, contrary to the opinion of the Circuit Court, on evidence which
supported the charges. The girls had admitted their wrongdoing. The Courts, in
such cases, must rely on the discretion and judgment of school officials. The case
was remanded for a determination as to whether the due process rights of the
students had been violated.
~157~
Significance: School board members and school officials must respect the
constitutional rights of students. Students have the right to due process which
means basically the opportunity to have notice of the charges and the
opportunity to be heard.
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