U.S. Supreme Court hears oral argument in Nassar Title VII retaliation case

On April 24, 2013, the U.S. Supreme Court heard arguments in University of Texas Southwestern Medical Center v. Nassar, Docket No. 12-484, reports Thomson Reuters.  The case addresses the issue of whether an employee must prove that the sole reason for an employer’s action was retaliation or if a successful discrimination claim can be made in situations where retaliation was at least one of two or more motivating factors.

Naiel Nassar alleges that his direct supervisor made discriminatory comments about his ethic and religious background when he was an associate professor at the University of Texas Southwestern Medical Center in Dallas and physician at an affiliated AIDS clinic.  He sought a new position, resigned from his faculty position at the University, and told management about his manager’s discriminatory practices.  Management then intervened and prevented the clinic from hiring him directly.  Nassar says it was in retaliation for his discrimination complaint; the medical center says it was due to a pre-existing policy between the University and the hospital where Nassar had been working.

Nassar’s attorney, Brian Lauten, argued before the Supreme Court that statutory language and court precedent support interpreting the law’s retaliation provision as permitting “mixed motive” claims.  The medical center’s legal team said the law as written requires that retaliation be the only reason, or the “but for” cause of an employer’s action.  Much the oral argument focused on congressional amendments made to Title VII in 1991, specifically to added language that applied the mixed-motive rationale to claims brought under one section but not under another.

Daryl Joseffer, arguing on behalf of the medical center, said that absent the inclusion of such language in the retaliation section, Nassar must prove that the discrimination claim he made was the only reason he was not offered a desired position at the medical center.  Justices Elena Kagan and Sonia Sotomayor in particular seemed skeptical of Joseffer’s reasoning.

“Is there any other discrimination statute in which one can say there’s a different standard for proving retaliation than there is for proving substantive discrimination?” Kagan asked early into Joseffer’s argument.  ”As I sort of survey the universe, it seems … there’s no statute in which the two have been divorced.  Am I wrong about that?”

Lauten argued that Congress clearly didn’t intend to create two different standards within the same statute and that any perceived difference was merely an oversight.  Mixed-motive reasoning should also apply to retaliation claims, otherwise “it does not make any sense at all,” Lauten told the court.

Justice Antonin Scalia said it was not the court’s job to figure out what Congress meant to do, only to interpret what they did do.  ”I don’t have to psychoanalyze Congress and say did they really mean it, blah, blah, blah,” Scalia told Lauten.  ”The statute still makes a clear distinction between the two.”

Indiana University Maurer School of Law Professor Deborah Widess, who filed a friend-of-the-court brief supporting Nassar, described the case as one in a string that highlight the “push-pull relationship” between Congress and the court.  ”Depending on the outcome of the Nassar case, it could either be a step forward in employment litigation or it could highlight the already broken-down dialogue on what Congress intends with, and how the Court chooses to interpret, a law,” Widess said.

Source: Thomson Reuters, 4/25/13, By Amanda Becker

[Editor's Note: In March 2013, Legal Clips published a Sua Sponte item reporting that NSBA had filed an amicus curiae brief in  University of Texas Southwestern Medical Center v. Nassar, No. 12-484, asking the U.S. Supreme Court not to hamper school districts’ abilities to discipline or fire employees.]

Sua Sponte: NSBA’s amicus brief urges U.S. Supreme Court to review Tenth Circuit ruling that parents who unilaterally placed disabled student in a private residential treatment facility were entitled to tuition reimbursement

NSBA, along with the Colorado Association of School Boards (CASB), has filed an amicus brief in support of Jefferson County School District R-1 (JCSDR1), asking the U. S. Supreme Court to review a decision by a U.S. Court of Appeals for the Tenth Circuit (CO, KS, NM, OK, UT, WY).  The three-judge panel’s decision in JCSDR1 v. Elizabeth E. held that the parents of a special education student, who unilaterally placed her in a private treatment facility, were entitled to reimbursement for tuition expenses under the Individuals with Disabilities Education Act (IDEA).

At both the district and circuit court levels the parties disagreed on the test which the court should adopt for determining whether the parents were entitled to reimbursement.  The parents urged adoption of the Third Circuit’s “inextricably intertwined”  test, while JCSDR1 championed the “primarily oriented” test used in the Fifth and Seventh Circuits.  Declining to adopt either test, the Tenth Circuit panel’s majority found the placement reimbursable under a straightforward application of the IDEA statutory text.  In doing so, the majority relied on the plain language of the IDEA to develop a four-part test. Although all three judges agreed that regardless of the test applied the parents would still prevail on the facts, one judge filed a concurring opinion stressing that the private placement must provide a meaningful educational benefit, and not merely meet the student’s “unique needs,” in order to qualify for reimbursement under the IDEA.  (See Legal Clips for detail summary of Tenth Circuit’s majority and concurring opinions)

NSBA/CASB’s brief lays out two main policy arguments for the High Court to grant JCSDR1′s petition for certiorari and review the Tenth Circuit panel’s decision.  First, they argue that the issue in dispute has been adjudicated by the circuit courts using disparate standards and without any consensus, unconstitutionally leaving schools without the necessary clear notice of their obligations under the IDEA in this area.  The conflicting decisions from the circuit courts force key stakeholders into positions of adversarial mistrust rather than cooperation and invite costly and lengthy litigation between parents and public schools, as this case proves.  Second, NSBA/CASB contends that treating students’ mental health problems is beyond the role, capacity, and competency of public schools.

In closing the brief states:

As this issue stands today, the purposes of the IDEA are not served by the circuit split or the Tenth Circuit decision below.  Without further intervention from this Court, the cooperative process under IDEA to ensure children with disabilities receive a free appropriate public education will be subverted, as public schools are faced with litigation seeking to make them the payer of first resort for services that they are neither suited nor funded to provide directly.

The brief, which was filed on April 26, 2013, was written by Joe R. Tanguma of Walsh, Anderson, Gallegos, Green & Treviño, P.C., Houston, Texas.

Federal appellate court rules parents not required to exhaust physical abuse and timeout claims under IDEA, but they failed on the merits of those claims

Muskrat v. Deer Creek Pub. Sch., No. 11-6194 (10th Cir. Apr. 23, 2013)

Abstract: A U.S. Court of Appeals for the Tenth Circuit (CO, KS, NM, OK, UT, WY) three-judge panel has ruled that the parents of a disabled student were not required under the Individuals with Disabilities Education Act (IDEA) to exhaust their administrative remedies before bringing suit claiming physical abuse by staff and staff use of unapproved timeouts with their child.  However, it concluded that the parents had failed on the merits of their claims, styled as a § 1983 action based on violation of the student’s Fourteenth Amendment substantive due process rights.

The panel found that the instances of alleged physical abuse did not rise to the level of a constitutional tort because the defendants’ behavior did not “shock the conscience” of the court.  It, likewise, determined that the instances of placing the student in a timeout room did not “shock the conscience,” and therefore rise to the level of a constitutional tort.  Finally, the panel rejected the parents’ argument that their claims should be analyzed under the Fourth Amendment reasonableness standard rather than the  Fourteenth Amendment “shock the conscience” standard.

Facts/Issues: J.M. attended Deer Creek Elementary School (DCES) from 2002 to 2007.  He was a special education student with an individualized education program (IEP) under the IDEA.  When J.M. exhibited disruptive behavior, he was placed in a “timeout room.”

The timeout room was small, although big enough for both a student and teacher to fit inside.  It had a light fixture and a door without a lock.  The door had a small window that was too high for children to see out of.  It appears that the longest J.M was in room was four minutes.

J.M.’s parents, the Muskrats,  eventually became concerned about the use of the timeout room and told school officials beginning in 2004 that J.M. should not be placed there.  The Muskrats said J.M. did not have the mental maturity to understand the timeout room’s purpose and it therefore only frightened him.

In November 2005, DCES modified J.M.’s IEP to prohibit placing J.M. in a timeout room.  However, Principal Debbie Straughn instructed at least one staff member to place J.M. in the timeout room if needed.  According to DCES records, J.M. was placed in timeout at least 30 times during the 2004-05 and 2005-06 school years.  Prior to the start of the 2006-07 school year, J.M.’s IEP was amended to prohibit school staff from subjecting J.M. to the timeout room or placing him in a classroom with a timeout room.  The school initially honored this agreement, moving J.M. to a classroom without a timeout room. The school also decommissioned its timeout rooms generally for the 2006–07 school year.  However, a couple of months into the school year, school officials moved J.M. to a classroom that contained a no-longer-in-use timeout room.

In addition to the impermissible use of timeouts, the Muskrats alleged that J.M. had been subjected to three instances of physical abuse by school staff.  The first instance involve a special education teacher slapping J.M. in the face while trying to calm him.  The second instance involved an aide slapping J.M. on the arm hard enough to leave a red mark.  The third instance involved both the teacher and the aide restraining J.M. for about two minutes, preventing him from standing up at his desk.

The Muskrats withdrew J.M. from DCES after the 2006-07 school year and eventually from all of the school district’s schools.  They filed suit in October 2008 in federal district court against Deer Creek Public Schools (DCPS), DCES’s principal, the teacher, and the aide.  The suit asserted federal claims under § 1983 alleging violations of J.M.’s constitutional rights, and state law claims.

The defendants filed a motion to dismiss on the ground the district court lacked subject matter jurisdiction because the Muskrats had failed to exhaust their claims through the administrative processes established under the IDEA. The district court rejected the exhaustion argument.

The defendants then filed a motion for summary judgment, arguing that their behavior stated no constitutional violation under a Fourteenth Amendment “shocks the conscience” analysis.  The district court agreed, entering judgment against the Muskrats on their § 1983 claim.

The Muskrats responded with a motion arguing that the district court had improperly dismissed the case because they could still proceed under a Fourth Amendment “reasonableness” theory in the alternative to a Fourteenth Amendment “shocks the conscience” theory.  The district court denied this motion, finding that the Muskrats had never before asserted a Fourth Amendment theory, and it was too late to do so.

Ruling/Rationale: The Tenth Circuit panel affirmed the lower court’s rulings in all respects.  It first considered the issue of subject matter jurisdiction under IDEA.  Acknowledging that prior Tenth Circuit case law had treated the exhaustion issue as a jurisdictional matter, the panel conceded that it was unclear such analysis is legally correct.

Noting that the federal appellate circuits are split on whether the exhaustion requirement is jurisdictional, the panel pointed that those circuits holding that it is jurisdictional have done so without analysis.  It  found that those circuits holding to the contrary were no more thorough, with the exception of the Ninth Circuit.   It stated that the Ninth Circuit in Payne v. Peninsula Sch. Dist., 653 F.3d 863 (9th Cir. 2011) (en banc), concluded that “as a matter of policy, deeming IDEA exhaustion jurisdictional was unwise because it ‘is not a check-the-box kind of exercise’ and its ‘inexact’ nature could ‘haunt the entire proceeding, including any appeals’ if treated as jurisdictional.”

While finding itself in agreement with the Ninth Circuit’s reasoning, the panel determined that in this case it need not decide whether IDEA exhaustion requirement is jurisdictional.   Since the defendants had raised the exhaustion argument below and again on appeal, its status as jurisdictional or not was moot.  ”Had defendants failed to raise IDEA exhaustion below or failed to renew that question here, then our obligation to do so independently would turn on its jurisdictional or nonjurisdictional nature.”

The panel separated the claims of physical abuse from the timeout claim. Determining that each of the incidents potentially amounted to a common law tort, it concluded that “[n]o authority holds that Congress meant to funnel isolated incidents of common law torts into the IDEA exhaustion regime.” As a result, the panel found IDEA imposed no obligation on the Muskrats to exhaust their physical abuse claims administratively.

In regard to the timeouts, the panel stated that “complaints about use of timeouts as part of a student’s IEP would generally fall within the IDEA exhaustion regime.”  However, it found that IDEA’s exhaustion requirement did not bar the Muskrats from bringing suit because even though they had not formally requested a due process hearing, “they nonetheless worked through administrative channels to obtain the relief they sought, namely, preventing J.M. from being put in a timeout room in the future.”

Based on the steps that the Muskrats took and the relief they obtained, i.e., the change to J.M.’s IEP prohibiting placing him in a timeout room or placing him in a classroom with a timeout room, the panel concluded “it would have been futile to then force them to request a formal due process hearing—which in any event cannot award damages—simply to preserve their damages claim.”   It, therefore, determined that the Muskrats’ suit was not barred for failure to exhaust administrative remedies.

The panel then turned to the merits of the claims, beginning with the Fourteenth Amendment substantive due process “shocks the conscience” claim. In regard to the three instances of physical abuse, it found none of the incidents demonstrated a “brutal and inhumane abuse of official power.”  As a result, the panel might condemn the behavior, but none the instances rose to the level of a constitutional tort.

As to the timeouts, the panel first addressed whether the principal was individually liable for having placed J.M. in a timeout room.  It found that the incident involving the principal, which lasted about four minutes, could at most be characterized as a “careless or unwise excess of zeal” rather than a “brutal and inhumane abuse of official power.”  The panel, therefore, found the principal had not engaged in a conscience shocking activity for which she could be held liable in her individual capacity.

As to whether the principal could be held liable in her supervisory capacity, the panel said, “[T]he Muskrats have forfeited any argument that Straughn may be liable in a supervisory capacity.”  It then addressed the question of whether DCPS “was liable because the supposedly injurious conduct was pursuant to official policy or custom,” the standard established in Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). 

The panel agreed with the district court that DCPS could not be held liable under Monell “because the Muskrats had failed to show that any school district employee had committed a constitutional violation.”  It added that even if there had been a jury question in regard to an individual defendant’s liability, DCPS could not be held liable because the Muskrats had failed to “identify the school district policy that led to J.M.’s purportedly unconstitutional treatment.”  The panel found that at best the Muskrats had alleged that some of DCES’s staff had violated the school’s timeout policy, but such allegations could not lead to the conclusion that the policy caused J.M’s alleged constitutional injury.

Finally, the panel took up the Fourth Amendment claim.  It found that the Muskrats had made only a passing reference to the Fourth Amendment in response to the defendants’ motion for summary judgment, while it consistently argued its Fourteenth Amendment due process “shocks the conscience” claim.  According to the Panel, “the district court correctly concluded that the Muskrats had never raised a Fourth Amendment argument before their post-summary judgment Rule 59(e) motion.”  It also rejected the Muskrats’ suggestion that the district court should have addressed their claims under a Fourth Amendment standard without any prompting.  The panel stated: “[I]t is not settled law [in the Tenth Circuit] that the Fourth Amendment applies in school discipline cases; and it is not settled law [in this circuit] that the district court had an obligation to evaluate the Muskrats’ case under the Fourth Amendment reasonableness standard regardless of how they pleaded their claims.”

Muskrat v. Deer Creek Pub. Sch., No. 11-6194 (10th Cir. Apr. 23, 2013)

[Editor's Note: In September 2012, Legal Clips summarized an article in the StarNewsonline.com reporting that the U.S. Department of Education’s Office for Civil Rights (OCR) determined after investigation that the New Hanover County school district in North Carolina had no non-compliance issues with North Carolina’s Greenblatt Act, which gives schools strategies, such as seclusion rooms, to deal with students’ aggressive behavior.

Also in September 2012, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit (CO, KS, NM, OK, UT, WY) in Ebonie v. Pueblo Sch. Dist. 60 holding that a Colorado teacher’s use of a desk containing a restraint feature did not violate a disabled student’s right against unreasonable seizure under the Fourth Amendment, her Fourteenth Amendment right of due process, or her Fourteenth Amendment right to equal protection.”]

Kentucky Supreme Court rules student was entitled to Miranda warnings before questioning by assistant principal in the presence of school resource officer

N.C. v. Kentucky, No. 2011-SC-000271 (Ky. Apr. 25, 2013)

Abstract: The Kentucky Supreme Court, in a 4-3 split, rules that a high school student, who was detained in the school office for questioning by an assistant principal regarding giving prescription drugs to a classmate in the presence of a school resource officer, was entitled to Miranda warnings before the school official began the questioning.  The court’s majority held “that any incriminating statements elicited under the circumstances of this case, with a school official working with the police on a case involving a criminal offense, the police failing to give Miranda warnings, and the juvenile being in custody, are subject to suppression under the Unified Juvenile Code and the Fifth Amendment.”   It concluded that the student was in custody at the time of questioning and any statements made must be suppressed.

Facts: Issues: A teacher at Nelson County High School (NCHS) found an empty prescription pill bottle for hydrocodone with student N.C.’s name on it on the floor in the boy’s bathroom.  An investigation was conducted before N.C. was questioned.  Assistant Principal Michael Glass, having ascertained that N.C. had given some pills to a classmate, went with Steven D. Campbell, a Nelson County deputy sheriff assigned to NCHS as the School Resource Officer (SRO), to remove N.C. from class for questioning.

N.C. was taken to a room in the school office where he was subjected to closed door questioning by Glass in the presence of the SRO.  After Glass informed N.C. that he had recovered the bottle, N.C. admitted to having given two of the pills to a classmate.  N.C. explained that the medication had been prescribed after he had his wisdom teeth removed.

A.P. Glass told N.C. that he was subject to school discipline (in fact he was subsequently expelled).  He then left to check on the other student while the SRO told N.C. that he would be charged with a crime and explained the criminal consequences.  N.C. was charged with possessing and dispensing a controlled substance, a Class D felony, in a juvenile petition.

The SRO testified that he was present throughout the questioning, and participated in the discussion.  He was either wearing his uniform or a shirt that said “Sheriff’s Office,” and was armed with a gun.  He was assigned to the high school from the sheriff’s office, and had been there daily for the last four years.  It was the SRO’s decision to file charges against N.C.  At no time did the SRO tell N.C. that he was free to leave or give him any version of the Miranda warnings, though the officer obviously understood that the hydrocodone was a scheduled narcotic, as evidenced by the charges he filed in juvenile court.  The charges read that N.C. “has admitted to the affiant to giving two (2) of his prescription pills (Hydrocodone, Schedule II drug for pain relief) to another student at Nelson County High School.”

The assistant principal testified that he knew how the SRO operated in criminal investigations, since this was not their “first go around” interrogating juveniles together.  Clearly, the assistant principal and the officer had a loose routine they followed for questioning students when there was suspected criminal activity.

N.C. filed a motion to suppress the statements he made to A.P. Glass.  The juvenile court denied N.C.’s motion to suppress.  N.C. entered a conditional guilty plea to the charge, reserving the right to appeal the denial of his motion. He appealed to the Nelson Circuit Court, which affirmed the lower court decision.  A  motion for discretionary review was filed at the Kentucky Court of Appeals, which denied review.  In February 2012, the Kentucky Supreme Court granted review.

Ruling/Rationale: A four justice majority of the Kentucky Supreme Court framed the issue as “whether a student is entitled to the benefit of the Miranda warnings before being questioned by a school official in conjunction with a law enforcement officer, the SRO, when he is subject to criminal charges.”  The majority held that the statements N.C. made to the assistant principal should be suppressed under the Kentucky Unified Juvenile Code and the Fifth Amendment to the United States Constitution.   In addition to the majority opinion, there was one concurring opinion and two dissenting opinions.

According to the majority, the question “presents a nexus between the rights of a juvenile accused of a crime and the needs of school officials to maintain order in the schools and protection for the other children in their care on the school premises or during school activities.”  Beginning with a discussion of whether Miranda applies, it looked to the two-part threshold that must be satisfied before the warnings are required.  The two-step threshold requires both questioning by law enforcement and being held in custody.

The majority noted that when it is the police or other law enforcement officer who is doing the questioning, the first threshold is obviously met.  Further, it pointed out that since Miranda, the U.S. Supreme Court has held that in some situations persons who are not law enforcement will be treated as such for Miranda purposes.   The Supreme Court has noted that the law enforcement requirement in Miranda may be contextual.   Kentucky followed this line of reasoning in Buster v. Commonwealth, 364 S.W.3d 157 (Ky. 2012), where the Kentucky Supreme Court held that a non-law enforcement person was acting on behalf of or in concert with police to obtain a confession and thus Miranda warnings were required.  In Buster, police could not obtain a statement from a mentally challenged suspect, so they engaged a social worker, whom the suspect knew well and trusted, to question the suspect and turn the information over to police.  This made the questioning “indistinguishable from the police investigation,” and therefore the social worker was “subject to the same constraints as a police officer.” Id. at 164-65.

The majority found that the second threshold question, whether a person is in custody, “is an objective inquiry.”  It stated that such an inquiry “requires a court to determine the circumstances surrounding the interrogation and, given those circumstances, to decide whether a reasonable person would believe he could terminate the interrogation and leave.”

The majority warned that even when Miranda warnings are given, the statement may still fail to be admissible because it was not given voluntarily. Nonetheless, the absence of such warnings when required renders the statement inadmissible.  In order to determine voluntariness, the majority pointed out that the Supreme Court has established the “‘totality of the circumstances’ test which viewed knowledge of the right to refuse consent as a factor.”  The majority stated: “[T]his ‘totality of the circumstances’ test has been adopted in determining voluntariness, with a more demanding standard in criminal cases placed on defining voluntariness of self-incrimination, which includes the giving of Miranda warnings, in custodial interrogations by law enforcement.”

In regard to the custody aspect of Miranda in juvenile cases, the majority relied heavily on the Supreme Court’s decision in J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011),

U.S. Supreme Court Decision in J.D.B. v. North Carolina  

J.D.B. was a 13-year-old student who was removed from his classroom by a uniformed police officer, escorted to a closed-door conference room, and questioned by the officer.  A digital camera which had been stolen from a neighborhood home had been seen in J.D.B.’s possession.  J.D.B. was questioned with two police officers (one in uniform) and two administrators present, for 30 to 45 minutes.  He was not given the Miranda warnings or an opportunity to speak with his grandmother, and was not told he was free to leave the room. J.D.B. was asked about what he had done the prior weekend which was when the camera was stolen.  He denied any wrong-doing, and said he was in the neighborhood looking for lawns to mow.  The assistant principal then urged J.D.B. to do the right thing, warning that the truth always comes out in the end. J.D.B. then admitted his involvement.  It was only at that point that he was told that he could refuse to answer questions and was free to leave. J.D.B. then wrote a statement and was allowed to catch the bus home that day.

Two juvenile petitions were filed against J.D.B.  He filed a motion to suppress his statements claiming that he had been interrogated in a custodial setting without benefit of the Miranda warnings. Taking for granted that Miranda applied if the child were in custody, the Supreme Court specifically held that a child’s age is a factor that must be considered in doing the Miranda custody analysis, and approved an “all relevant circumstances” test that is broader than a “totality of the circumstances” test.

Saying that the Miranda safeguards were put in place because the voluntariness test alone could not adequately guard against the inherent pressures of a custodial interrogation, and setting forth at length many ways that children respond differently from mature adults, the Court concluded that only the full scope of the Miranda protections ensures due process to children.  The Court noted the particular susceptibility of juveniles to the influence of authority figures and the naturally constraining effect of being in the controlled setting of a school with its attendant rules.  Writing for the majority, Justice Sotomayor observed that the custody question must be answered by an objective inquiry: what were the circumstances surrounding the interrogation, and given those circumstances, would a reasonable person believe he could terminate the interrogation and leave?

And, in the case of children, the Court found that there were broader considerations, such as the juvenile’s age, which could carry increased weight when determining if a child is in custody.  The Court remanded the case to the state courts to fully consider all the relevant circumstances of the situation, a standard that the Court said was more inclusive than the totality of the circumstances test applied to adults.

In N.C. v Kentucky, the majority concluded that the “facts of this case demonstrate that Appellant was in custody under the ‘all relevant factors’ test set forth in J.D.B.”  The majority noted the following facts.  N.C. was taken from his classroom by a law enforcement officer, who wore a gun, was seated in the assistant principal’s office, and the door was shut.  The law enforcement officer sat down right beside him, across from the assistant principal.  The assistant principal testified that he expected N.C. to stay put, which was no doubt conveyed by his demeanor.  Neither the officer nor the assistant principal told N.C. that he was free to leave.  He was initially questioned by the assistant principal instead of the officer, thereby leading him to believe this was only a school discipline matter

According to the majority, “The student had no reason to believe that he was facing criminal charges.”  It emphasized that “[i]t was not until the questioning was over and the confession made that the law enforcement officer told N.C. that he was placing felony criminal charges against him.”  The majority continued: “No reasonable student, even the vast majority of seventeen year olds, would have believed that he was at liberty to remain silent, or to leave, or that he was even admitting to criminal responsibility under these circumstances.”

Responding to the State’s argument that the assistant principal was not a “state actor”, the majority said: “Because the assistant principal was acting in concert with the SRO, and they had established a process for cases involving interrogations of this kind, this conduct and the SRO’s presence make this state action by law enforcement for Miranda purposes even if the confession came in response to questions from the assistant principal rather than the SRO.”

Lastly, the majority said, “This case presents the Court with the opportunity to balance the important public policy concerns of educators and parents to provide an appropriate and safe school environment while still protecting the individual rights of a child when the child is embroiled in the juvenile justice system.”  The majority found that balance by recognizing the different purposes of questioning a student.  To the extent that school safety is involved, school officials must be able to question students to avoid potential harm to that student and other students and school personnel.  But when that questioning is done in the presence of law enforcement, for the additional purpose of obtaining evidence against the student to use in placing a criminal charge, the student’s personal rights must be recognized.  The majority concluded

“school officials may question freely for school discipline and safety purposes, but any statement obtained may not be used against a student as a basis for a criminal charge when law enforcement is involved or if the principal is working in concert with law enforcement in obtaining incriminating statements, unless the student is given the Miranda warnings and makes a knowing, voluntary statement after the warnings have been given.”

The concurring opinion emphasized that a public safety exception, allowing the admission of certain statements made prior to any Miranda warnings, was recognized in New York v. Quarles, 467 U.S. 649 (1984), and has been used in the school context where there was credible evidence of a gun on school grounds.  Commonwealth v. Dillon D., 863 N.E.2d 1287 (Mass. 2007) (holding that the public-safety exception applied where a thirteen-year-old middle school student was found in possession of bullets and, before having been properly Mirandized, was questioned about a gun).

The first dissent, written by Justice Cunningham, concluded that the questioning in the present case did not “constitute a police interrogation as anticipated by Miranda.”  Cunningham wrote: “The presence of a school resource officer, who by law must be a certified law enforcement officer, does not make it a custodial interrogation anymore than the presence of a priest would have made it a church service.”

The other dissent, written by Justice Venters, took the novel approach of suggesting a new rule that would limit the application of the exclusionary rule. Venters proposed that in juvenile delinquency cases, probative evidence would be excluded under the exclusionary rule only where it “serves to deter deliberate, reckless, or grossly negligent” police conduct and, in the case of Fifth Amendment violations, only where the circumstances indicate the statement was actually involuntarily given or was produced under circumstances that cast doubt upon its reliability.  Otherwise, the exclusionary rule should not apply in a juvenile court adjudication.

 N.C. v. Kentucky, No. 2011-SC-000271 (Ky. Apr. 25, 2013)

[Editor's Note: In June 2011, Legal Clips summarized an article from NPR reporting  that the U.S. Supreme Court, in a 5-4 split, had broadened use of the Miranda warning for suspects, extending it to children questioned by police in school.  The Court ruled, in J.B.D. v. North Carolina, No. 11121, that age must be considered in determining whether a suspect is in custody for purposes of administering Miranda warnings.

In July 2011, Legal Clips summarized a Washington Post article that reported on police questioning of a Virginia student that raised Miranda issues addressed in J.B.D.] 

Federal appellate court rules that U.S. Circuit Courts of Appeals have jurisdiction over state’s petition for review of ED’s determination regarding state’s request for a waiver from IDEA’s “maintenance of effort” requirement

South Carolina Dep’t of Educ. Duncan, No. 12-1764 (4th Cir. Apr. 26, 2013)

Abstract: A U.S. Court of Appeals for the Fourth Circuit (MD, NC, SC, VA, WV) three-judge panel has ruled that a U.S. Circuit Court of Appeals has jurisdiction to review a U.S. Department of Education (ED) determination regarding a state’s request for a waiver from its “maintenance of effort” requirement under the Individuals with Disabilities Education Act (IDEA). The panel also ruled that ED’s denial of a state request for a full waiver constitutes a determination of ineligibility in the amount excluded, triggering IDEA’s requirement that ED provide the state with notice and an opportunity for a hearing before making a final determination in regard to the waiver request.

Facts/Issues: Under IDEA, a state must meet a number of eligibility requirements in order to receive the full amount of federal funds allocated to the state.  One of those requirements is that a state must not reduce the amount of its own financial support for special education “below the amount of that support [it provided] for the preceding fiscal year.”  Under this “maintenance-of-effort” condition, ED must reduce the level of federal funding to the State in subsequent years by the amount of the funding shortfall. However, ED may grant a waiver of the maintenance-of-effort condition if doing so “would be equitable due to exceptional or uncontrollable circumstances such as a natural disaster or a precipitous and unforeseen decline in the financial resources of the State.”

South Carolina requested a waiver of its maintenance-of-effort condition for approximately $67.4 million for its fiscal year ending 2010.  ED granted the waiver in part, but denied it to the extent of $36.2 million.  Accordingly, ED advised the state that ED was reducing the State’s allocation for fiscal year 2012 by $36.2 million.  When South Carolina requested a hearing on the determination, ED informed the state that IDEA does not provide for a hearing.

Even though ED informed South Carolina that it was not entitled to a hearing, South Carolina filed an appeal from the decision in August, 2011, with the Office of Hearings and Appeals, requesting a hearing.  After receiving no status reports or information regarding the appeal, South Carolina filed a motion to expedite.

ED later issued order dated May 22, 2012, denying the request for a hearing and explaining that while the IDEA provides for notice and an opportunity for a hearing “prior to (1) issuance of the Department’s final agency decision rejecting the eligibility of a State for IDEA grant funding or (2) a withholding of IDEA funds,” the agency’s partial denial of South Carolina’s request for a waiver was neither a decision rejecting eligibility nor a decision withholding funds.

Thus, ED ruled, “no right to a hearing attached.”  ED’s opinion reasoned that because South Carolina was not challenging the conclusion that it did not meet the maintenance-of-effort condition and because South Carolina was never deemed ineligible for a grant, this was not a case of an agency decision rejecting eligibility.  ED also stated that the agency decision did not involve a “withholding” of grant funds under the IDEA because “[s]uch a withholding action can only occur after [the Office of Special Education and Rehabilitative Services] has made a determination that a State has substantially failed to comply with an IDEA eligibility condition.”

South Carolina filed a petition with the Fourth Circuit for review, challenging ED’s denial of its request for a full waiver and its request for a hearing.  In addition to its petition, South Carolina filed a motion to stay the reduction of its IDEA funds pending appeal.

ED filed a motion to dismiss the petition for lack of jurisdiction, contending that its waiver determination was a final agency action subject to review only in the district court under the Administrative Procedure Act, not in the court of appeals under the IDEA or General Education Provisions Act (GEPA).  The Fourth Circuit panel denied the state’s motion for a stay pending appeal and deferred ruling on the USDOE’s motion to dismiss until after oral argument.

South Carolina’s appeal presented the panel with two procedural questions: (1) whether the court has jurisdiction to consider South Carolina’s petition for review, and (2) whether South Carolina is entitled to an opportunity for a hearing on ED’s determinations that South Carolina had “failed to maintain financial support for special education and related services for FY 2010 by $36,202,909″ and consequently that South Carolina’s grant for fiscal year 2012 be reduced by that amount.

Ruling/Rationale: The Fourth Circuit panel held: (1) that it, as a court of appeals, has jurisdiction under IDEA to review the state’s petition for review; and (2) under IDEA the state is entitled to hearing prior to ED’s determination that the state has meet its maintenance of effort requirement for FY 2010.

The panel noted that while South Carolina contended that both the IDEA and GEPA provide subject-matter jurisdiction over its petition, it would “look first to the IDEA, the more specific statute and the statute pursuant to which the underlying action in this case was taken.”

After reviewing the IDEA’s relevant statutory language,   20 U.S.C. § 1416(e)(8)(A), the panel concluded:

Because South Carolina seeks review of the USDOE’s decision denying a full waiver of the maintenance-of-effort condition for fiscal year 2010 imposed by § 1412(a)(18) (as well as the Secretary’s decision not to grant South Carolina a hearing before making that decision), we must evaluate whether the maintenance-of-effort waiver determination was an “action with respect to eligibility.”

South Carolina argued that a maintenance-of-effort waiver determination is an eligibility determination because it is “one of the twenty-five eligibility requirements” and therefore “[b]y not waiving [the maintenance-of-effort condition] for the 2009-10 year, [ED] found that South Carolina did not meet the eligibility requirements for a grant.”

ED, on the other hand, contended that South Carolina was found eligible for grants under IDEA, and simply suffered a cut in funding due to a “[f]ailure to administer the grant in compliance with grant assurances.”  It argued that “South Carolina was not found ineligible for a grant under the IDEA because, had it been so found, it would not have received any funding.”

The panel concluded that it possessed jurisdiction, because ED’s waiver determination was a determination whether to remove an eligibility condition and a reduction of the State’s eligibility for future funding.  It, therefore, constituted ”action with respect to the eligibility of the State under section 1412″

The panel found ED’s argument that the court still lacked jurisdiction because ED’s determination did not result in ineligibility, but instead a reduction in funding, without merit.  It pointed out that “the text of § 1416(e)(8)(A) forecloses such a claim, [because] [u]nder that section, our jurisdiction does not depend on whether a State was found completely ineligible for funding.  Rather, it depends on whether an action was taken ‘with respect to eligibility’.”

Turning to the question of whether South Carolina is entitled to a hearing under IDEA before ED makes its final determination whether to grant South Carolina a full waiver of the maintenance-of-effort condition for fiscal year 2010, the panel answered in the affirmative.  The panel’s decision paralleled its jurisdictional analysis.  It stated: “Both the basis for our jurisdiction and the basis for a right to a hearing depend on [ED's] making a determination relating to eligibility.”  ”In this case, the partial denial of the maintenance-of-effort waiver not only provides us with jurisdiction under § 1416(e)(8) but also amounts to a ‘determination that a State is not eligible’ for funding under § 1412(d)(2), albeit only to the extent of $36.2 million.”

The panel, therefore, held: [U]nder § 1412(d)(2), South Carolina was entitled to notice and an opportunity to be heard before a final determination on its waiver request was made.”  It also concluded that because ED’s determination “could not have been final until after [ED] provided the State with notice and opportunity for a hearing, … South Carolina remains eligible for its full funding until the final determination is made.”

South Carolina Dep’t of Educ. Duncan, No. 12-1764 (4th Cir. Apr. 26, 2013)

[Editor's Note: Reporting on the panel's decision, Seanna Adcox of Associated Press in the April 27, 2013 edition of The Post and Courier quoted South Carolina Superintendent of Schools, Mick Zais, as saying, "We've been partially exonerated. We contended all along we were entitled to a hearing and that Secretary Duncan acted improperly when he denied us a hearing.” The article also reported:

Because of the penalty, South Carolina is receiving $140 million this fiscal year from the federal government for special education, compared to $176 million in 2011-12.  But South Carolina’s school districts have not felt the loss, since the Legislature put $36 million in the current state budget to cover the cut.

In June 2011, Legal Clips summarized an article in EdWeek‘s special education blog reporting that South Carolina may lose about $111 million in federal special education money for cutting its spending on students with disabilities for the last two years without the U.S. Department of Education (ED)’s approval. U.S. Assistant Secretary for the Office of Special Education and Rehabilitative Services Alexa Posny  stated in a letter to State Superintendent Mitchell Zais that that if South Carolina doesn’t come up with the $111 million that it cut from special education budgets for the last two years, the federal government will penalize the state by the same amount.]

Sua Sponte: U.S. Departments of Health and Human Services and Education issue letter to chief state school officers and child welfare directors re: The Uninterrupted Scholars Act amendments to FERPA

The U.S Department of Health and Human Services (DHHS) and Department of Education (ED) have issued a letter to Chief State School Officers and Child Welfare Directors regarding The Uninterrupted Scholars Act (USA) (Public Law 112-278), enacted on January 14, 2013.  The USA amends the Family Educational Rights and Privacy Act (FERPA).  The DHHS/ED letter states that the amendment permits educational agencies and institutions to disclose education records, without parental consent, to a caseworker or other representative of a state or local child welfare agency or tribal organization authorized to access a student’s case plan when the organization is legally responsible for the care and protection of the student.

The USA amendments also delete the FERPA requirement that school districts notify parents before complying with a lawfully issued subpoena or judicial order for education records, in cases concerning child abuse and neglect (as defined by the Child Abuse Prevention and Treatment Act) where the parent is a party.

Text of the USA.

[Editor's Note: Many states have adopted state versions of FERPA, either by statute or agency regulation.  These laws should be reviewed before advising school districts that they can stop notifying parents of subpoenas in child abuse cases involving a parent.   Since these laws concern rights of notice, the state laws, being more generous, may continue to be enforceable by parents.   To avoid confusion and possible litigation, you may want to have your client districts pursue companion changes at the state level.]

Suit alleges Mississippi high school is holding mandatory religious assemblies

According to WAFB, The American Humanist Association (AHA) has filed suit against Northwest Rankin High School, challenging the school’s reportedly recent mandatory student assemblies that presented a Christian message as a violation of the separation of church and state.  The suit was brought by AHA’s legal wing, the Appignani Humanist Legal Center (AHLC), after a number of students claimed that a mandatory assembly was held during school hours on April 9 where a representative of the Pinelake Baptist Church spoke of finding “hope” in “Jesus Christ.”

The suit alleges that anyone who attempted to leave the April 9 assembly was prevented from doing so and that at the end of the presentation, the speakers led the students in a Christian prayer.  AHLC attorneys say they sent a letter to the school condemning the assembly as unconstitutional but never received a reply.

Although the Rankin County School District had not received a notice of the lawsuit, a spokesperson issued a written statement stating: “Our students have the freedom to organize student-led and planned meetings and the assembly in question was student led and organized.  The meetings were not mandatory.”

William Burgess, AHLC’s legal coordinator, noted the school claims the assembly was “student-led and organized,” but argues the school was absolutely involved.  ”It is clear that these assemblies are put on by the school itself.  They were staged in a school room, during the school day and the school sent an email to teachers telling them that students were required to attend,” claims Burgess.  He added, “As the Supreme Court has made clear, when a school sponsors an event, the religious speech of speakers, including students or other private parties, is attributable to the school and therefore subject to the Establishment Clause.”

Source: WAFB, 4/26/13, By Joe Barnes

[Editor's Note: AHA's legal complaint, which was filed in a federal district court in Mississippi, states:

1. This action arises out of the Defendants policy of sponsoring school assemblies (the “Christian Assemblies”) that promote religion, and Christianity specifically, to its students during the school day.  The School’s sponsorship, presentation and promotion of these Christian Assemblies, and its excessive entanglement with the Pinelake Baptist Church, violate the Establishment Clause of the First Amendment of the United States Constitution, as applied to Mississippi by the Fourteenth Amendment thereof.

2. The Plaintiff seeks injunctive and declaratory relief and damages under 42 U.S.C.§ 1983 against Defendants to redress this Establishment Clause violation, together with recovery of attorney’s fees and costs under 42 U.S.C. § 1988 (b).

Legal Clips has reported on a number of instances that have lead to allegations that schools or school districts have crossed the line of separation of church state.  In January 2013, Legal Clips summarized an article in The Pickens Sentinel reporting that the Freedom From Religion Foundation is demanding that the Pickens County School District end the practice of conducting prayers at school board meetings.  In October 2012, Legal Clips summarized an Associated Press (AP) article in the Duluth News Tribune reporting that a group of parents in a San Diego County beachside community are expressing concern that free yoga classes being offered by the Encinitas Union School District will lead to indoctrinating students in eastern religion.  Dean Broyles, the parents’ attorney, said, “There’s a deep concern that the Encinitas Union School District is using taxpayer resources to promote Ashtanga yoga and Hinduism, a religion system of beliefs and practices.”]

ACLU suit charges California Dep’t of ED is failing to provide English learning students with assistance

The American Civil Liberties Union (ACLU), along with the Asian Pacific American Legal Center and the law firm of Latham & Watkins, has filed suit in Los Angeles County Superior Court, says the Los Angeles Times, against the California Department of Education (CDE) alleging CDE has ignored its obligation to make sure that thousands of students learning English receive adequate and legally required assistance.  The suit focuses on an estimated 20,000 students who are receiving no help or inadequate services as they work to learn English and keep up academically at the same time.

According to Jessica Price, staff attorney with the ACLU Foundation of Southern California, “It is a blatant violation of the law not to provide these students the most basic and essential component of their education — language to access their classes.”  She noted that advocates based their conclusions on information that school districts report to the state Department of Education.  She added that about 250 districts acknowledge they are providing no services or inappropriate language help to these students, and yet “the state of California does absolutely nothing in response.”

The suit was filed on behalf of six students and their guardians. They are remaining anonymous out of concern over possible retaliation from their local school systems, attorneys said.  Also suing is Walt Dunlop, a former Oxnard Union High School District teacher who has worked with English learners and criticized his district’s programs for them.

Although federal and state funds are set aside to help English learners, the best approach has long been a topic of contention.  Programs that offer the teaching of academic subjects in a foreign language have become more rare. It’s more common for English-speaking teachers to receive training in how to make their lessons more accessible.  And students can also receive support in classes taught in English.  The ACLU’s Mark Rosenbaum said it was outrageous that so many students received no help at all.

A state official insisted California was not shirking its obligations.  The education department is “determined to ensure that all English-learner students receive appropriate instruction and services,” said Chief Deputy Supt. of Public Instruction Richard Zeiger.  ”When questions arose,” he added, the department “asked local educational agencies to provide additional information regarding the services they are required to provide.”  Zeiger also urged parents with specific issues to contact the department though its established complaint process.

In an earlier round of litigation, advocates targeted Dinuba Unified as well as the state.  Dinuba settled the suit, setting the stage for the current legal action targeting the state.

Source: Los Angeles Times, 4/24/13, By Howard Blume

[Editor's Note: In June 2012, Legal Clips summarized an article in  the Los Angeles Times reporting that the ACLU et al were suing Dinuba Unified School District (DUSD) and the California Department of Education (CDE) alleging that state officials are neglecting their legal obligation to ensure that students who are learning English are receiving an adequate and equal education. The suit, filed in Sacramento County Superior Court, charged DUSD uses a substandard curriculum to improve the lagging performance of students who have yet to master English.

Although the suit focuses on DUSD’s English language learner (ELL) curriculum, the suit accuses CDE of poor oversight and says CDE must, by law, act to make sure these students are keeping pace academically with their peers across California.  According to the suit, for the last three years, children in DUSD “have been subjected to a program … that lacks sound educational support [and] contradicts bedrock principles of how children learn language.”]

Federal appeals court rules school nurse has qualified immunity in suit over medically motivated examination of student’s genitals

Hearring v. Sliwowski, No. 12-5194 (6th Cir. Mar. 27, 2013)

Abstract: A U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY, TH) three-judge panel has ruled that a school nurse, who conducted  a medically motivated visual examination of the vaginal area of a 6 year old student, was entitled to qualified immunity from a suit alleging the nurse’s examination constituted an unreasonable search in violation of the student’s Fourth Amendment rights.  The panel, assuming without deciding that the examination amounted to a Fourth Amendment violation, concluded that the right to be free from an unwarranted medically motivated visual examination of one’s genitals was not clearly established at the time the nurse examined the student.

Facts/Issues: B.H. was a student at Mt. View Elementary School (MVES). After complaining of irritation in her genital area and that it “burned” when she urinated, the school’s secretary informed the school’s nurse of the complaint. The nurse called Melissa Hearring, B.H.’s mother, and left a message detailing the complaint.  Hearring returned the call, informing the school that B.H. had a history of chronic bladder infections.

Two days later B.H. made the same complaint.  The secretary took her to the school clinic to wait for the nurse to arrive and left a message for B.H.’s mother.  After the nurse arrived and was informed about B.H.’s complaint, she took B.H. into a private bathroom used by teachers, with the secretary accompanying her.  In an effort to assess the student, the nurse asked B.H. to pull down her pants and underwear, and then “did a visual check to see if the student had any reddened or irritated areas along her legs, and inner thigh area that could have been causing her discomfort.”  Although the nurse did not touch B.H. during the examination, she did conduct a highly intrusive visual exam.  The nurse testified that there was no suspicion of child abuse motivating the examination.

National and state nursing guidelines “restrict medical examinations of students and prohibit a genital examination of a student absent parental consent or a medical emergency.”  B.H.’s parents did not give consent prior to the examination.

Hearring filed suit in federal district court on B.H.’s behalf against the nurse in her individual capacity and Metropolitan Government of Nashville-Davidson County, Tennessee (Metro) as a municipal defendant.  The suit alleged that the nurse’s visual examination of B.H. violated B.H.’s Fourth Amendment right to be free from unreasonable searches.  It claimed Metro was liable for the alleged unconstitutional search by virtue of its failure to train appropriately its school nurses.

Both defendants filed a motion for summary judgment, with the nurse arguing she was entitled to qualified immunity from the suit.  The district court denied summary judgment with respect to both defendants, finding that B.H.’s constitutional rights were violated by the medical examination, and that the nurse was not entitled to qualified immunity because the right at issue was clearly established by prior precedent.

Ruling/Rationale: The Sixth Circuit panel reversed the district court’s decision denying the nurse qualified immunity and remanded the case.  The panel’s analysis began with a restatement of the two-part test employed to determine if a defendant is entitled to qualified immunity: “(1) whether, considering the allegations in a light most favorable to the party injured, a constitutional right has been violated, and (2) whether that right was clearly established.”

The panel assumed without deciding that Hearring had alleged a violation of a Fourth Amendment right, and devoted its analysis to whether that right was clearly established.

The panel noted that the law was well-settled that unjustified strip searches of students are not constitutionally permissible under the Fourth Amendment. However, it found that “a critical factor distinguishes this case from the more typical strip-search cases: namely, it is clear that [the nurse's] visual inspection of B.H.’s genital area was not an investigation for contraband, but rather was an attempt to assess B.H.’s medical condition.”

Noting the lack of legal precedent as to “whether this kind of medically motivated visual examination constitutes a search subject to the Fourth Amendment standards developed in the strip-search case law,” the panel found that the “legal question, whether a visual examination conducted for medical purposes by a medical professional falls within the definition of ‘search’ for Fourth Amendment purposes, is critical, because the Fourth Amendment’s protections are not triggered until a search occurs.”  It, therefore, took up the question of “whether it was clearly established that the Fourth Amendment applies to the actions of a school nurse when she attempts to provide medical care to a student.”

With no Supreme Court precedent on the question, the panel reviewed Sixth Circuit case law.  It found no direct Sixth Circuit precedent “holding that the Fourth Amendment applies to visual examinations conducted by medical professionals for medical purposes.”  In fact, it found ”some precedent indicating that the Fourth Amendment does not apply in such circumstances.” As a result, the panel concluded that it could not say “that it is clearly established under our precedent that the conduct of a school nurse giving medical aid to students is subject to the standard of reasonableness imposed by the Fourth Amendment.”

The panel disagreed with the lower court’s finding that the right was clearly established in the Sixth Circuit by virtue of rulings in out-of-circuit decisions. The Sixth Circuit has stated that out-of-circuit precedent clearly establishes rights only in “extraordinary case[s]” when the out-of-circuit decisions “both point unmistakably to the unconstitutionality of the conduct complained of and [are] so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting.”  The panel found that the out-of-circuit authority relied on by the district court does not meet this standard. Summing up its conclusion on the effect of these other holdings, the panel quoted an earlier Sixth Circuit decision, Ohio Civil Serv. Emps. Ass’n v. Seiter, 858 F.2d 1171, at 1177–78 (6th Cir 1988): “[A] mere handful of decisions of other circuit and district courts, which are admittedly novel, cannot form the basis for a clearly established constitutional right in this circuit.”

Hearring v. Sliwowski, No. 12-5194 (6th Cir. Mar. 27, 2013)

[Editor's Note: As the panel in Hearring points out, the usually context for a strip search involves a belief on the part of school officials that a student is concealing contraband, e.g. gun, drugs, stolen property.  In February 2013, Legal Clips summarized an article in The Morning Call reporting that the Palisades School Board had adopted a policy that would allow strip searches of students when other students and staff are believed to be in danger.  “It would have to be something extreme. … If there’s imminent danger, we would probably do what is necessary,” said Director Stephen Kunkel, who is on the Board’s policy review committee."]

Federal appeals court upholds New Mexico district’s ban on student distribution of rubber doll fetuses

Taylor v. Roswell Indep. Sch. Dist., No. 11-2242 (10th Cir. Apr.8, 2013)

Abstract: A U.S. Court of Appeals for the Tenth Circuit (CO, KS, NM, OK, UT, WY) three-judge panel has ruled that a New Mexico school district’s decision to ban students from distributing rubber doll fetuses on campus as part of the students’ anti-abortion activities did not violate the students’ First Amendment free speech or free exercise of religion rights, or their Fourteenth Amendment equal protection rights.  It also rejected the students’ facial challenge to the school district’s policy requiring pre-approval before distributing any non-school-sponsored material on school grounds.

The panel determined that distribution of the dolls constituted private student speech governed by the principles enunciated in Tinker v. Des Moines, 393 U.S. 503 (1969).  Applying Tinker’s substantial disruption standard, it concluded that the school district officials were justified in prohibiting distribution of the rubber fetuses.

The panel also rejected the students’ facial challenge of the pre-approval policy, which was premised on prior restraint and vagueness.   The panel concluded that the policy contained adequate procedural safeguards to pass constitutional muster.  It also found the policy sufficiently constrained official discretion in the school context because of the inclusion of the Tinker standard in the policy.  It, likewise, determined the policy was not unconstitutionally vague because: “Our review of the policy convinces us that a reasonable high school student of ordinary intelligence would understand when pre-approval is needed and how to go about requesting it.”

Finding nothing in the record from which it could reasonably infer that the school district acted with the purpose of suppressing religious practice, the panel found the school district’s actions were based on neutral rules of general applicability.  Lastly, the panel rejected the equal protection claim because the students failed to show that they were similarly situated to other students who were treated differently.

Facts/Issues: Students at two high schools, Roswell High School (RHS) and Goddard High School (GHS), who are also members of a religious youth group known as Relentless which is affiliated with a local church, engaged in various forms of religious expression at school.  Each week they distributed different items at both schools.  At the time the distributions began Roswell Independent School District (RISD) had two policies concerning distribution of non-school related materials on campus.

Policy 7110 required advance permission from the district before distribution in any quantity of promotional items or advertisements on campus.  A separate longstanding but unwritten policy required students to obtain permission before on-campus distribution of non-school-sponsored literature.

In January 2010, the Relentless students, along with the pastor of their church, planned to distribute small rubber dolls, designed to be a realistic representation of a human fetus, to each student at both schools.  At GHS, the pastor and eight or nine students were already distributing the dolls when Assistant Principal Brian Luck arrived and observed the distribution.  After speaking with other GHS administrators, he learned the distribution had not been approved.  Luck ended the distribution.

Later that morning a GHS administrator called the RHS principal to see if a similar distribution was occurring at that school.  Being off-site at the time, the RHS principal contacted his on-site security guard and instructed the guard to confiscate the dolls if there was disruption to the educational process.  After investigating, two guards determined the dolls should be confiscated.  Both schools experienced doll-related disruptions, including the dolls being used to plug toilets, being stuck to ceilings, and set on fire.

Teachers at both schools complained that students’ preoccupation with the dolls disrupted classroom instruction.  While teachers were trying to instruct, students threw dolls and doll heads across classrooms, at one another, and into wastebaskets.  Some teachers said the disruptions consumed eight to 10 minutes each class period, and others said their teaching plans were derailed entirely.

In February 2010, the Relentless students attempted to distribute the dolls again, but were prevented by administrators at both schools.  On the same day, other students were permitted to distribute Valentine’s Day-related items, such as candy, cards, and stuffed animals.  There was no evidence of disruption from the distribution of Valentine’s Day-related items.

Relentless students subsequently engaged in a number of on campus distributions without any clear indication of prior approval, with the exception of an Easter egg distribution which was approved.  However, there was no evidence that any of these distributions caused disruption.

RISD Policy 7110 was in place before the rubber fetus distribution.  It requires the school principal’s preapproval to engage in promotional activities on campus, including advertising or solicitations.  Policy 7110 bans outright the promotion of certain items on campus, such as alcohol and drugs.  It does not mention religion.

The other policy in place at the time of the doll distribution was a long-standing unwritten policy of requiring students to obtain approval before distributing non-school sponsored material on school grounds.  In May 2010, RISD formalized this unwritten policy when it promulgated Policy 5195, captioned “Distribution of Non School Sponsored Literature.”  This policy requires that students obtain approval from the school administration before distributing more than 10 copies of “any non-school sponsored literature.”

Section 2 of Policy 5195 provides that approval may be withheld if the school district administration “reasonably determines” that the distribution:

a. Would cause a substantial disruption or a material interference with the normal operation of the school or school activities.

b. Is potentially offensive to a substantial portion of the school community due to the depiction or description of sexual conduct, violence, morbidity or the use of language which is profane or obscene and which is inappropriate for the school environment as judged by the standards of the school community.

c.  Is libelous or which violates the rights of privacy of any person.

d.  Is false or misleading or misrepresents facts.

e.  Is demeaning to any race, religion, sex, or ethnic group.

f.   Encourages violation of local, state or federal laws.

The policy includes certain procedural safeguards.  The district must approve or deny a distribution request within five school days.  The district must provide a written explanation of the reasons for any denial.  Students whose requests are denied have a right to appeal.  The policy provides definitions of terms, including “distribution” and “non school sponsored.”  The policy gives school officials the right to “designate a time, location and means by which the distribution may take place,” and to revoke approval if the distribution causes a substantial disruption.

The students filed suit in federal district court against RISD, seeking injunctive relief and alleging three counts.  Count I included two First Amendment speech claims.  First, plaintiffs brought a facial challenge against the district’s preapproval policies for non-school-sponsored material, alleging the policies are unconstitutional prior restraints and are unconstitutionally vague.  Second, they challenged the policies as applied to the plaintiffs, claiming that the district’s refusal to allow them to distribute the fetus dolls violated their free speech rights.  Count II alleged violation of the plaintiffs’ free exercise rights under a so called hybrid claim theory.  Finally, Count III alleged that the district discriminated against the plaintiffs in violation of the Fourteenth Amendment’s Equal Protection Clause.  The magistrate judge granted summary judgment for the district on all claims.  The plaintiffs appealed all counts, but abandoned their hybrid claim theory.

Ruling/Rationale: The Tenth Circuit panel affirmed the lower court’s grant of summary judgment in favor of RISD on all claims.  The free speech challenges failed because school officials reasonably forecasted that the distribution would cause substantial disruption and because the distribution did cause substantial disruption.

Applying Tinker v. Des Moines, 393 U.S. 503 (1969), to the doll distribution, the panel acknowledged that had it taken place outside the school context, the political and religious messages being conveyed would have likely merited First Amendment protection.  However, because the distribution took place within school walls, it was subject to scrutiny under the reasonable forecast of disruption standard.  The breath of the distribution, i.e., a doll for each student at the two high schools, a total of 2,500, created a strong potential for substantial disruption.  The panel also noted: “The record is replete with reports of doll-related disruptions throughout the day on January 29, 2010, including substantial disruptions to classroom instruction, damage to school property (the ceilings and plumbing), and risks to student safety (the fire-starting and doll-throwing).”

The panel rejected the students’ argument that the disruptions were the work of students not part of Relentless and, therefore, their behavior could not be attributed to the group.  It stressed that the Tinker standard is not concerned with who causes the disruption, but rather on speech/expression that causes disruption.

The panel also addressed the students’ claim that RISD’s preapproval policies policies are unconstitutional on their face as prior restraints and for reasons of vagueness and overbreadth.  The panel determined that two considerations saved the pertinent portions of Policy 5195 from facial constitutional challenge:

First, the policy contains procedural safeguards, including the opportunity to bring two appeals. Second, the policy imposes substantive constraints on official discretion that are constitutionally sufficient in the special context of a public school, where students enjoy free speech rights but not to the same extent as they would in the public square.

Based on Tinker and its progeny,  the panel concluded that “the policy constrains official discretion sufficiently for the school context.”  However, it warned that RISD officials “must take care to apply the policy in a viewpoint-neutral manner to avoid its unconstitutional application.

In addition, the panel found support for its conclusion that Policy 5195 is not an incidence of unconstitutional prior restraint in the decisions of other circuits that have considered school preapproval policies.  It noted that “the clear trend is one of upholding policies that contain adequate procedural safeguards and place reasonable limits on official discretion.”

In particular, the panel cited the Eighth Circuit decision in Bystrom ex rel. Bystrom v. Fridley High School, Indep. Sch. Dist. No. 14, 822 F.2d 747 (8th Cir. 1987), the Seventh Circuit decisions in Muller ex rel. Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530 (7th Cir. 1996) and Hedges v. Wauconda Community Unit School District No. 118, 9 F.3d 1295 (7th Cir. 1993), and the Sixth Circuit decision in M.A.L. ex rel. M.L. v. Kinsland, 543 F.3d 841 (6th Cir. 2008).  The panel rejected the Ninth Circuit’s decision in Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988), striking down a preapproval policy.  It said, “Burch’s broad statement suggesting that no preapproval policy could pass constitutional muster runs counter to every school speech case we have cited in this opinion.”

The panel also found the preapproval requirement was not unconstitutionally vague: “Our review of the policy convinces us that a reasonable high school student of ordinary intelligence would understand when preapproval is needed and how to go about requesting it.”

Turning to the students’ claim that their free exercise of religion rights were violated, the panel that because RISD’s actions were based upon neutral rules of general applicability, those actions were subject to rational basis review.  It found that the “only reasonable inference from the record is that [RISD] disallowed the rubber fetus dolls for the neutral reason that they were disruptive, and that [officials] allowed the other distributions and expressions for the neutral reason that they were not disruptive.”  Pointing out that efforts to avoid disruption are rationally related to the school’s interests in maintaining discipline and protecting the educational environment, the panel concluded that RISD’s “decisions to stop the fetus doll distributions survive rational basis review.”

Finally, the panel rejected the students’ equal protection claim on the that ground the students were not similarly situated to other students who received different treatment.  It pointed out that the “Valentine’s Day cards and other items were different in kind and scale from the rubber doll distribution.”  The panel emphasized that “[n]o other students attempted to distribute hundreds or thousands of items, and there is no evidence any other distribution caused substantial disruptions.”

Taylor v. Roswell Indep. Sch. Dist., No. 11-2242 (10th Cir. Apr.8, 2013)

[Editor's Note: In March 2013, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Third Circuit (PA, NJ, DE, VI)  in K.A. v. Pocono Mountain Sch. Dist. holding that a Pennsylvania elementary school student is entitled to a preliminary injunction barring a school district from enforcing its materials distribution policy that prohibits the student from distributing to classmates flyers produced by a local church promoting a Christmas party.  The panel determined that the school district’s decision to restrict the student’s speech should be analyzed under the substantial disruption standard enunciated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), despite the fact that the speech occurred in an elementary school setting, and the materials were prepared by an outside group.]