Pennsylvania board votes to sell ads inside school buses

In a 7-1 vote, Parkland School Board approved the sale of advertising inside school buses, reports the Express-Times. The pilot program will roll out on 46 buses and is expected to generate $150,000 in revenue for the school district annually. Parkland may be the first district in the state to sell advertising space in its buses.

Robert Cohen, the sole dissenting member of the board, said putting ads inside buses is an “insidious invasion” by commercialism on the educational environment. Board member Roberta Marcus noted that ads pay for Parkland’s newsletter, calendar and cafeteria menus. Coca-Cola Bottling Co. paid for the high school scoreboard and their ads appear at district athletic fields.

According to Marcus, advertising inside school buses is not ideal, but it’s a means to an end at a time when money is tight, she said. When the alternative is cutting programs and staff, Marcus said, the choice is obvious. “We can’t burden our local taxpayers any more than we have to,” she said. “I need to do what I need to do to get dollars into this district.”

District residents expressed concerns about the plan during the public comment portion of the board meeting.  One resident doubted a district policy to regulate what kind of ads are to appear in buses would hold up in court.

The school district’s attorney, C. Steven Miller, said the contract was tweaked in response to some of the resident’s earlier suggestions and that he is confident it would pass legal muster. He noted that Parkland can pull the contract at any time as long as district officials notify The Factory Advertising 90 days in advance.

Board member Mark A. Hanichak asked district Superintendent Richard Sniscak if the ads could be excluded from buses that carry elementary school students. Sniscak explained that Parkland’s buses typically transport students in multiple grade levels during one morning or afternoon, so removing ads in between runs would be impractical.

Tobacco, alcohol and political ads, as well as those otherwise in conflict with the law or district policies, are prohibited, according to the agreement. Since the ads will target district students, they’ll typically encourage health, safety and participation in upcoming events, officials said.

Source: The Express-Times, 2/22/12, By Precious Petty

[Editor's Note: C. Steven Miller is a member of NSBA's Council of School Attorneys.

In February 2011, Legal Clips summarized an article in the Salt Lake Tribune reporting that a bill allowing school districts to sell advertising space on the exterior of school buses had been voted down in the Utah House. Rep. Jim Bird had hoped to pass HB199 as a way to help raise additional money for school districts.]

Teacher sues Chicago district after being suspended for using “n word” in classroom

A white teacher has filed suit against Chicago Public Schools (CPS) after being suspended by his principal for five days without pay, reports the Chicago Sun-Times. The teacher, Lincoln Brown,  claims he used the n-word in front of his majority African-American class at Murray Language Academy in October 2011 after one of his students passed a note to a girl with rap lyrics including the word.

According to the suit, Brown “attempted to give his own denunciation of the use of such language” by  discussing the use of the racial slur in Huckleberry Finn in an attempt to show “how upsetting such language can be,” but just as he used the n-word, the school’s principal, Gregory Mason walked into the classroom. Two weeks later, Mason wrote to Brown, giving an account of the incident that disputes the precise words and context in which Brown used the n-word.

Mason charged Brown with “using verbally abusive language to or in front of students” and “cruel, immoral, negligent or criminal conduct or communication to a student, that causes psychological or physical harm” in violation of  CPS policy. Following a hearing, the principal told the teacher that he would be suspended for five days without pay. Brown appealed to CPS, but a CPS hearing officer ruled in December 2011 that he had “engaged in inappropriate discussions with sixth-grade students during instructional time.”

Brown pointed out that he had previously used materials from the Southern Poverty Law Center that advised how to tackle the n-word with students, and that he had thought Mason “was on my side” when the principal stayed to watch the discussion with “engaged, excited” students. “It’s ridiculous to believe that sixth-graders aren’t exposed to this language, not only in music but in their everyday lives,” he said.

According to an account the principal wrote before he suspended Brown, “The very insistent (sic) I entered the room, I heard Mr. Brown discussing with the entire class of students on the word, ‘N*****’ ‘Even today, I still hear people use the word N*****,’ stated Mr. Brown.” Mason wrote that Brown then asked, “can anyone explain to me why blacks can call each other a n*****, and not get mad, but when whites do it, blacks get angry.” Brown allowed three students to answer the question, Mason wrote.

Source: Chicago Sun-Times, 2/17/12, By Kim Janssen and Natasha Korecki

[Editor's Note: While "n word" is denounced as a vile, racist epithet, it is  widely used in what is referred to as the "rap" or "Hip Hop" culture. It is not unusual for African-American youth to use the term when bantering with peers.

As alluded to in the Sun-Times article, context is important. In December 2011, Legal Clips summarized a Minnesota federal district court ruling  in Pruitt v. Anderson finding that an African-American student had stated a valid Title VI claim against the school district alleging a racially hostile environment, but not against the superintendent in his individual capacity. The court rejected the student’s Section 1983 equal protection claim on the ground that it was too vague to provide the defendants with sufficient notice of the alleged unconstitutional conduct.

The suit alleged that during  homecoming week in both 2008 and 2009, a group of students designated the Wednesday of that week “Wigger Day” or “Wangsta Day.” According to a footnote in the court’s opinion, “Wigger” refers to “a white youth who affects the speech patterns, fashion and other manifestations of black youth;” and “Wangsta” refers to “someone, especially a white person, who poses as a gangsta rapper.”  On that day in 2009, 60 to 70 students wore “oversized sports jerseys, low-slung pants, baseball caps cocked to the side and ‘doo rags.’”

In November 2010, Legal Clips covered a report in the Macomb Daily that the father of an African-American student had filed suit against Warren Consolidated Schools alleging his daughter was the victim of racial bias and harassment by the teacher reading aloud passages from a book about slavery. The suit claimed that excerpts from “From Slave Ship to Freedom Road” were read by the student's fifth-grade teacher.  Two excerpts that were read included n-word references and compared African-Americans’ skin color to “Satan’s thoughts” and night darkness. The excerpts talk about the buying and selling of slaves.

WCS officials said fifth-grade teachers and the principal discussed the book before the reading as part of their Black History Month curriculum. It is recommended for children ages 10-15. ]

Rhode Island district votes not to appeal federal court ruling ordering removal of prayer banner

California district settles suit over on-campus student speech

San Diego Unified School District (SDUSD) has agreed to settle a lawsuit brought by the American Civil Liberties Union (ACLU) over La Jolla High School (LJHS) officials limiting messages that can be painted on three senior benches on campus, says the La Jolla Light.  The announcement comes several months after a state court granted a preliminary injunction in favor of the ACLU. Although SDUSD does not admit wrongdoing, it is rewriting its student speech policy. Students also no longer have to get permission to put messages on the benches.

“The whole point is, schools are supposed to be our laboratories of democracy,” said David Loy from the ACLU. “The schools are supposed to respect people’s opinions and free speech.” School officials said they were pleased with the settlement, adding most of the changes have already been implemented. Language that is “obscene, libelous or slanderous,” or “so incites pupils as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school,” remains prohibited on the benches or elsewhere on public school property.

The bench controversy stemmed from a Feb. 15, 2011 incident in which school officials painted out messages written by members of the school’s Persian Club urging support for freedom in Iran. The messages were covered in white paint after Shelburne deemed them to be inappropriate. A couple of days later other students painted “Freedom for Iran and LJHS,” on the benches which, too, was whited-out. The controversy flared up again when LJHS Principal Dana Shelburne said he planned to have the benches removed. Supt. Bill Kowba blocked the move shortly after it became public, saying the benches would remain up until the lawsuit was settled.

Source: La Jolla Light, 2/17/12, By Staff

[Editor's Note: The legal standard for determining whether school officials' restrictions on student on-campus speech are constitutional is governed by Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) and its progeny.  In Tinker, the Supreme Court said, "[C]onduct by the student, in class or out of it, which for any reason – whether it stems from time, place, or type of behavior – materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”

In November 2011, Legal Clips summarized a Nebraska federal district court decision in Kuhr v. Millard Pub. Sch. Dist. holding that students who were disciplined for wearing apparel that the school district deemed “gang-related,” have a valid cause of action for violation of their First Amendment free speech rights. The court denied the school district’s motion to dismiss or, in the alternative, for summary judgment.

The court found that the speech at issue was controlled by the substantial disruption standard enunciated in Tinker and framed the issue as “whether the shirts were likely to interfere with school activities, including, but not limited to, the possibility of threats or acts of gang violence.” Based on the evidence in the record, the district court determined that “a reasonable jury could find that [the school district was] not in possession of such information at the relevant times.”] 

Montana district settles open meetings and public records suit brought by opponents of new sex ed curriculum

According to the Billings Gazette, members of the Helena School Board approved terms of a settlement agreement regarding a lawsuit filed by opponents of the school district’s controversial health curriculum approved in 2010. The group alleged various open-meeting violations and violations of the requirements to provide public records in connection with the passage of the health enhancement curriculum.

New York education officials and teachers’ union agree on teacher evaluation system as Gov. Cuomo’s deadline looms

New York State education officials and the state teachers’ union reached an agreement on a new teacher evaluation system, reports School Book, within hours of the deadline imposed by Gov. Andrew M. Cuomo. According to those involved in the negotiations, Cuomo threatened to break the impasse by imposing his own way to judge the quality of a teacher’s work.

The agreement allows school districts to base up to 40% of a teacher’s annual review on student performance on state standardized tests, as long as half of that portion is used to analyze the progress of specific groups of students, like those who are not proficient in English or have special needs. The remaining 60% is to be based on subjective measures, like classroom observations and professional development projects.

The resolution came after an all-night negotiating session in Albany and included concessions from both sides, like an agreement by the state to relax certain requirements on the way teachers would be rated. While some details of the new agreement were not available, it is expected to give teachers more wiggle room in their evaluations. It would allow them to receive an “effective” rating over all even if their students’ test scores were low — as long as they showed at least some progress, according to people familiar with the arrangement.

The agreement settles a lawsuit filed by the New York State United Teachers and clears the way for the state’s 700 school districts to iron out the specifics of their own evaluation systems with local teachers’ unions, as required under a 2010 state law. That law was a result of an earlier compromise between unions and the state to help New York secure $700 million in education funding through the federal Race to the Top (RTTT) program.

The statewide push for a new teacher evaluation system took on renewed urgency in January 2012 after federal education officials placed New York on a watch list and warned that it might have to return the $700 million in RTTT money if it did not fulfill its promise for a new evaluation system for teachers and principals, and a database to track student records across districts.

For months, the main point of contention was just how much to weigh the state’s standardized tests. The 2010 law allows districts to base 20% of a teacher’s review on state test scores, and another 20% on locally developed tests or other measures. But at the request of Mr. Cuomo, the Board of Regents, which sets state education policy, later adopted regulations permitting districts to count state test scores up to 40%.

The state teachers’ union sued over the change, arguing that it allowed districts to place too much importance on one single test when they should be considering multiple subjective measures. In August 2011, a state Supreme Court judge largely sided with the union and invalidated aspects of the Regents’ decision. The state appealed the decision. The agreement, however, renders the appeal moot.

State education officials and union leaders said the new agreement would serve as a guide for districts but was not mandatory. The scoring is to be used as part of a new four-tier rating system in which teachers will be deemed ineffective, developing, effective or highly effective, replacing the “satisfactory” or “unsatisfactory” scale used statewide for decades. Mr. Cuomo gave school districts across the state until January to sign off on their version of the evaluation system, or else lose their 4 percent increase in education aid. Union leaders said nearly 100 districts had already reached agreements with their local unions on evaluation systems, and another 250 agreed on key parts, with many waiting for the lawsuit to be resolved before moving forward.

Source: School Book, 2/16/12, By Fernanda Santos and Winnie Hu

[Editor's Note: New York State School Boards Association Executive Director Timothy G. Kremer expressed satisfaction that the agreement would put in place a good framework for school leaders and their bargaining units to work out the details.  As example, "SED-approved evaluation measures should help ensure that school leaders can negotiate rigorous evaluation criteria.  And having the Education Commissioner approve a local evaluation program will serve as an important backstop."  But Kremer noted that the prolonged negotiations had placed school districts in a difficult position as they face strict deadline s for review, approval and implementation of local teacher evaluation programs, with the loss of state aid a possibility if the deadlines are not met.

In January 2012, Legal Clips summarized an article in the Boston Globe reporting that New York state was suspending millions of dollars in School Improvement Grants (SIGs) to 10 school districts, including New York City, which failed to agree with unions on an evaluation system for teachers and principals. The deadline for districts to strike deals with their local unions representing teachers and principals was Dec. 31, 2011. According to state Education Commissioner John B. King Jr., the failure of the districts to reach agreement on a system could jeopardize those districts’ share of federal Race to the Top funds, which include millions of dollars more in grants to encourage improvements in instruction.

In August 2011, Legal Clips summarized an article in the New York Times reporting on the August 2011 state court decision referred to in the School Book article above. A State of New York Supreme Court judge in Albany County had issued an opinion, said the Times, concluding that the New York State Board of Regents (NYBOR) overreached in its interpretation of the new teacher evaluation law. Justice Michael C. Lynch invalidated aspects of recent NYBOR regulations on teacher evaluations.  The report indicated that Lynch's decision may further delay the introduction of the law, which was scheduled to go into effect for all fourth through eighth grade teachers, pending union approval, in the 2011-2012 school year.]

Ten states receive NCLB waivers, freeing them from certain acccountability standards

The Washington Post reports that the Obama administration has granted waivers to ten states from some of the No Child Left Behind Act’s (NCLB) toughest requirements, including that schools prepare every student to be proficient in math and reading by 2014 or risk escalating sanctions. New Jersey, Colorado, Florida, Georgia, Indiana, Kentucky, Massachusetts, Minnesota, Oklahoma and Tennessee received waivers.

Although New Mexico’s waiver application was denied, U.S. Education Secretary Arne Duncan said the state was continuing to work on its application and approval is likely to be forthcoming. An additional 28 states have indicated that they intend to apply in February 2012 for a second round of waivers.

During a meeting with educators at the White House on February 9, 2012, President Obama said:

We’ve offered every state the same deal.  We’ve said: If you’re willing to set higher, more honest standards than the ones that were set by No Child Left Behind, then we’re going to give you the flexibility to meet those standards. We want high standards, and we’ll give you flexibility in return. We combine greater freedom with greater accountability. Because what might work in Minnesota may not work in Kentucky, but every student should have the same opportunity to reach their potential.

In exchange for relief, the administration is requiring a quid pro quo: States must adopt changes that include meaningful teacher and principal evaluation systems, make sure all students are ready for college or careers, upgrade academic standards and lift up their lowest-performing schools. Historically, the federal government has left such decisions to states and local communities.

After states applied for waivers, their plans were read by peer reviewers, and the administration suggested changes. “There’s a huge gap between what the states asked for and what they ended up with,” said Michael J. Petrilli of the Thomas B. Fordham Institute, a conservative think tank. “The states asked for a mile, and the administration is giving them an inch.”

Rep. John Kline (R-Minn.), chairman of the House Committee on Education and the Workforce, accused Education Secretary Arne Duncan and Obama of usurping the role of Congress. Kline released the final bills in a series of five proposals to replace No Child Left Behind. Only one, aimed at expanding charter schools, has attracted Democratic support. “Rather than work with us to get it changed, he [Duncan] and the president decided to issue waivers in exchange for states adopting policies that he wants them to have,” Kline told a gathering at the American Enterprise Institute. “. . . This notion that Congress is sort of an impediment to be bypassed, I find very, very troubling in many, many ways.”

Source: Washington Post, 2/9/12, By Lyndsey Layton

[Editor's Note:  In a June 2011 letter, Congressmen Kline and Hunter expressed concern at the Deapartment's then-proposed NCLB waiver program.  They believed that the program could undermine efforts to produce a bi-partisan re-write of NCLB.  The Congressmen requested that Secretary Duncan provide "an explanation of the Department's legal authority for requiring states and schools to abide by certain changes in exchange for regulatory relief," as well as details about the program.  The House Committee chaired by Rep. Kline also asked the Congressional Research Service to analyze the Department's authority to initiate a waiver program.  Read Legal Clips' analysis of the memo here.

In November 2011, Legal Clips summarized an article in the Boston Globe reporting that Massachusetts had submitted its request for a waiver from NCLB to the U.S. Department of Education.  The state sought to replace some of the NCLB's strictest provisions with a more flexible system that would require its public schools to show steady improvement over the next six years. The editor's note cited articles by Associated Press in Education Week saying that Kentucky and ten other states had submitted applications to the Department of Education for waivers from NCLB's unpopular proficiency standards in time for the first deadline, November 14, 2011.]

Federal district court rules California district liable for unequal treatment of female athletics and retaliation under Title IX

Ollier v. Sweetwater High Sch. Dist., No. 07-714 (S.D. Cal. Feb. 9, 2012)

Abstract: A federal district court in California has ruled that a school district violated the Title IX rights of a class of female student-athletes because of the unequal treatment and benefits afforded the girls’ softball program in comparison to those afforded the boys’ baseball program. The court also found that the school district was liable for retaliation under Title IX for firing the girls’ softball coach, who had complained about the unequal facilities.  The court found that the plaintiffs in this class action were entitled to declaratory and injunctive relief. It, therefore, ordered the parties jointly to prepare a proposed compliance plan to include the court’s continuing jurisdiction and monitoring of the school district’s athletic programs  and activities.

Facts/Issues: A number of members of Castle Park High School’s (CPHS) softball team filed  a class action suit in federal district court on behalf female students and potential students in the Sweetwater Union High School District (SUSD) who participate, seek to participate, and are or were deterred from participating in student athletic activities at CPHS. The suit alleged SUHSD unlawfully discriminated against female student athletes at CPHS with respect to “practice and competitive facilities; locker rooms; training facilities; equipment and supplies; travel and transportation, coaches and coaching facilities; scheduling of games and practice times; publicity; and funding” in violation of Title IX. It also alleged SUHSD “failed to provide female students with equal athletic participation opportunities, despite their demonstrated athletic interest and and abilities to participate in athletics.” Because of these alleged failures, the plaintiffs asserted that girls’ participation in sports is severely limited and interested girls are discouraged from going out for sports.

On March 30, 2009, the district court granted plaintiffs’ motion for summary judgment on their second cause of action, finding that they had demonstrated through uncontroverted, admissible evidence that the defendants are not in compliance with Title IX based on unequal participation opportunities in the athletic program.

The remaining claims — violation of Title IX based on unequal treatment and benefits to females at CPHS, and retaliation — went to trial.

Ruling/Rationale:  Following the 10-day bench trial, the district court ruled in favor of the plaintiffs on the Title IX claims based on unequal treatment and benefits, as well as retaliation.

Regarding unequal treatment and benefits under Title IX, the court reviewed numerous aspects of the girls’ softball program in comparison with the boys’ baseball program at CPHS:

(1) Recruiting benefits.  The district court found: “The lack of coaches for girls’ teams impacted negatively the teams’ ability to participate in conference and nonconference competitions” and “… influenced the ability to adequately recruit girls for athletic teams.” It also noted that SUHSD had failed to present any evidence that recruiting practices at CPHS had changed since the lawsuit had been filed.

(2) Locker rooms, practices and competition facilities. The court concluded that the ones”provided to females athletes at CPHS are unequal as compared to the locker room, practice and competition facilities provided to male athletes.”

(3) Equipment, uniforms and storage. The district court found that SUHSD failed to present any evidence that it “monitors the provision of athletic equipment storage for gender equity.” It also found that the athletic director “did not provide any oversight for gender equity in the provision of equipment, supplies and uniforms to ensure that male and female athletes were provided with the same benefits.”

(4) Scheduling benefits. While noting that SUHSD had corrected boys’ and girls’ basketball scheduling to meet equitable competitive scheduling requirements, it found ”no evidence of any other time changes for any other sports . . . .”

(5) Equal access to coaching.  The district court pointed out that “CPHS’ lack of efforts to consistently and timely obtain coaches for girls’ teams severely impacts girls’ opportunities for competitive athletics.”

(6) Medical and training services. The court noted that in 2010 “significant changes were made to the weight-training and conditioning facility with the intent to make the area more gender equitable.” SUHSD had not presented any evidence, however, “that the renovated facility was being used by girls’ and boys’ teams in an equitable manner.” “Further, neither the Athletic Director nor defendant monitored weight room usage for gender equity.”

(7) Publicity and promotional support. The district court found a distinct lack of equity in this area, noting that while 46% of male athletes received the benefit of the band being at their events, only 13% of female teams received that benefit. “From 1998 through the date of the trial, no one at CPHS was tasked with monitoring publicity or promotional opportunities for gender equity.”

(8) Fundraising benefits.  The district court determined that no one at CPHS had “monitored Fund-raising opportunities or donations to the athletic program for gender equity,” nor had evidence been presented “to indicate that this situation has changed.”

(9) Administrative activity. The district court found no evidence that CPHS “had ever conducted a Title IX self-evaluation, a requirement under the implementing regulations.” It concluded: “As a result of systemic administrative failures at CPHS, female athletes have received unequal treatment and benefits before and during the time this action has been pending.”

Turning to the findings of fact in regard to the retaliation claim, the district court focused on the dismissal Douglas Martinez, who was the head softball coach from 2000-2006, allegedly based on his failure to complete paperwork,  properly calculate a player’s academic eligibility, and allowing an unauthorized parent to work on the softball field. He was terminated after continuing to complain about the softball program’s facilities.

The district court then issued its conclusions of law. As to the unequal treatment and benefits claim, the court concluded that the disparities between female and male athletic programs were not negligible and, therefore, violated Title IX:

Because of defendants’ continuing failure to address gender equity in athletics in a full and comprehensive manner, CPHS has not met its burden to demonstrate that the interim measures have completely and irrevocably eradicated the effects of the alleged violations.

With respect to the retaliation claim, the district court ruled that the reasons proffered by SUHSD were pretextual and, thus, the plaintiffs had overcome their burden of showing that SUHSD had not provided legitimate reasons for terminating Martinez.  The plaintiffs were adversely impacted by Martinez’ firing, as a less experienced coach was hired, significantly disrupting their long-term and successful softball program.

Lastly, the district court found that the plaintiffs were entitled to declaratory and injunctive relief. It rejected SUHSD’s argument that the claims were moot. The court, instead, concluded: “Because of the defendant’s long-standing and continuing overall violations of Title IX with respect to the treatment and benefits accorded female athletes compared to male athletes, and the fact that interim remedies have not completely and irrevocable eradicated the effects of these violations, this action is not moot.”

Ollier v. Sweetwater High Sch. Dist., No. 07-714 (S.D. Cal. Feb. 9, 2012)

 [Editor's Note: In February 2012, Legal Clips summarized a decision by a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in Parker v. Franklin Cnty. Ctmy. Sch. Corp. holding that two female basketball players had presented sufficient evidence for trial on their Title IX claim of denial of equal athletic opportunity.  Their claim against several Indiana school districts was based on disparity in scheduling boys’ and girls’ basketball games. The panel also found that the school districts were not entitled to Eleventh Amendment sovereign immunity from the players’ equal protection claim based on the scheduling disparity.]

Federal district court rejects request to bar Wisconsin district from prohibiting student from wearing “I [heart] Boobies” bracelet

K.J. v. Sauk Prairie Sch. Dist., No. 11-622 (W.D. Wis. Feb. 6, 2012)

Abstract: A federal district court in Wisconsin has denied a student’s motion for a preliminary injunction that would have temporarily prevented a middle school principal from banning students from wearing a cancer awareness bracelet bearing the message “I ♥ Boobies” while in school. The court concluded that it was not likely the student would succeed on the merits of her free speech claim because the message on the bracelet can be reasonably interpreted as vulgar.

Facts/Issues:  K.J., a student at Sauk Prairie Middle School (SPMS), along with a number of classmates, wore a bracelet at school bearing the message “I ♥ Boobies (Keep a Breast)”  during the first semester of the 2010-2011 school year. At the beginning of the second semester, however, SPMS Principal Ted Harter banned students from the wearing the bracelets at school. K.J. was informed by Harter that if she continued to wear the bracelet, she would be subject to detention and then suspension.

Several days after imposing the ban, Harter modified the restriction to allow students to wear the bracelet, provided it was turned inside-out so the message was not visible.  According to Harter, the expression “I ♥ Boobies! (Keep a Breast)” is sexual innuendo in violation of the dress code. He believes the bracelets elicits attention by sexualizing the cause of breast cancer awareness. Harter told students and parents that the bracelets were a “distraction, that it was inappropriate slang, and that other people, including some teachers, were offended.”

K.J.’s mother filed suit on behalf of K.J. against Sauk Prairie School District (SPSD) alleging that the principal had violated K.J. right to speech by prohibiting students from wearing the bracelet at school with the message visible. The plaintiffs filed a motion to temporarily enjoin the ban until the court reached a decision on the merits of the First Amendment claim.

Ruling/Rationale: The district court denied the motion for a preliminary injunction. To grant a preliminary injunction, it explained, it must first answer three threshold questions in the affirmative: (1) whether the plaintiff has a likelihood of success on the merits; (2) whether denial of relief would result in irreparable harm to her in the interim prior to the resolution of her claims; and (3) whether traditional legal remedies are inadequate to remedy the harm. If the plaintiff makes this showing, then the court proceeds to the balancing phase, in which it weighs the gravity of the harm to the plaintiff against any irreparable harm to the defendant and considers the effects of granting or denying the injunction on the public interest.

The district court then analyzed K.J.’s speech claim. After briefly discussing student speech jurisprudence, it pointed to Bethel School District No. 43 v. Fraser, 478 U.S. 675 (1986) as controlling in the present case.  In Fraser,  the Supreme Court held that school officials may prohibit students from using certain lewd, vulgar or offensive terms at school regardless of whether the speech causes a substantial disruption.  Acknowledging that the U.S. Court of Appeals for the Seventh Circuit, which includes Wisconsin’s federal district courts in its jurisdiction, has never considered the meaning of “lewd,” “vulgar” or “offensive” language under Fraser, it agreed with other federal appellate circuits that in order for speech to be “plainly offensive” it must be “speech that is something less than obscene but related to that concept, that is to say, speech containing sexual innuendo and profanity.”

The district court concluded, “Fraser permits schools to prohibit vulgar or offensive speech that is related to, but falls just short of being, profane, obscene or indecent.” Noting that the Seventh Circuit has not yet addressed the question of what standard of review should apply, the court concluded that the same reasonableness standard that has been applied to other school speech exceptions should apply when the speech in question is governed by Fraser.

The phrase “I ♥ Boobies,” determined the court, “straddles the line between vulgar and mildly inappropriate.” It found that the phrase is vulgar sexual innuendo, “at least in the context of middle school.” If that had been the end of the message on the bracelets it would have been an easy case under Fraser. However, because that vulgar phrase is combined with one promoting cancer awareness, i.e., “(Keep a Breast),” the plaintiffs are expressing a meaningful idea in a provocative manner.

In support of that argument, the plaintiffs cited H. v. Easton Area School District, No.10–6283, ___F. Supp.2d___, 2011 WL 1376141 (E.D. Pa. Apr. 12, 2011), in which a Pennsylvania federal district court granted the plaintiff a preliminary injunction prohibiting the school district from enforcing a ban against the same “I ♥ Boobies (Keep A Breast)” bracelets in its middle school. The Wisconsin federal district court disagreed with its Pennsylvania counterpart, stressing that the advertising ”campaign uses these hints of vulgarity and sexuality to attract attention and provoke conversation, a ploy that is effective for its target audience of immature middle students.”

The district court also pointed to a number of other federal district courts that have upheld the constitutionality  of school officials’ decision to discipline a student for making positive social statements in terms that could be reasonably interpreted as vulgar. While conceding that the relative vulgarity and innuendo in the bracelets was minor compared to other influences middle school age children encounter both in school and out, the district court emphasized that it would not impose its own judgment, but would only determine it was “reasonable for school officials to conclude that this phrase is vulgar and inconsistent with their goal of fostering respectful discourse by encouraging students to use ‘correct anatomical terminology’ for human body parts.”

The court found it likely that this was the actual reason for defendants’ ban on the bracelets.  The court expressed concern that the principal had not identified other instances in which the school banned similarly vulgar language, had commented about receiving complaints from parents and teachers, and permitted students to wear the bracelets for an entire semester. Even so, the court noted that this was not an attempt to mask viewpoint discrimination because the only part of the bracelets’ message that was banned was the part using vulgar language and sexual innuendo. The court pointed out that the school district “made efforts to provide alternative means for [K.J.] and her fellow students to express their message of breast cancer awareness.”  It was, therefore, “likely that the defendants determined reasonably that the phrase ‘I ♥Boobies! (Keep A Breast)’ involved sexual innuendo that was vulgar within the meaning of Fraser.”

K.J. v. Sauk Prairie Sch. Dist., No. 11-622 (W.D. Wis. Feb. 6, 2012)

[Editor's Note: In February 2012, Legal Clips summarized an Associated Press article in the Chicago Tribune reporting that a student at Roosevelt Middle School had filed suit against Twin Lakes [Indiana] School Corporation after the school’s vice principal ordered the student to turn inside out his “I ♥ Boobies (Keep a Breast)” bracelet.  According to the lawsuit, the student wore the bracelet to school without incident.

In September 2011, Legal Clips summarized an article in the Sauk Prairie Eagle reporting on K.J.’s suit against SPSD. The suit, filed by K.J.’s mother, Caran Braun, alleged that Principal Harter violated K.J.’s free speech and due process rights when he banned “I ♥ Boobies” bracelets from the school. Although the bracelets were popular among students, Harter determined that they were inappropriate and distracting.

In June 2011, Legal Clips summarized an article in the Lehigh Valley Express-Times reporting that Easton Area School District (EASD) had filed an appeal with the U.S. Court of Appeals for the Third Circuit (PA, NJ, DE, VI), seeking to overturn the federal district court’s preliminary injunction barring EASD from enforcing its ban on students wearing the bracelets. EASD asserts that the lower court ruling effectively hands the authority of the teachers, administrators and school board over to the students.]

In settlement announcement, federal district court judge in Texas blasts presidential candidates who criticized prayer ruling

According to an Associated Press (AP) report in Education Week, a federal judge who was vilified by Republican presidential hopefuls for banning prayer at a Texas high school graduation delivered a scathing and unusually personal response, saying those who used the case to further political goals “should be ashamed.” In a statement laying out the settlement terms of the prayer case, U.S. District Judge Fred Biery said that he forgave Christians who “venomously and vomitously” threatened his assassination; he thanked the U.S. Marshals for providing him additional security and without singling anyone out by name; and he offered a self-deprecating nod to those wished him the worst.

The unusually personal comments in a federal court order overshadowed the actual settlement. The case had been closely watched by social conservatives, and on the campaign trail, Newt Gingrich has portrayed Biery, a 1994 Clinton appointee, as the embodiment of so-called activist judges. After winning the South Carolina primary, Gingrich singled out Biery as a “dictatorial religious bigot” for his decision in the San Antonio court case. Under the settlement, the Medina Valley Independent School District (MVISD) won’t officially make prayer part of graduation ceremonies. The settlement does not, however, prohibit valedictorians or other student speakers from praying during their remarks. Craig Wood, an attorney for the school district, said the deal forces the district to make only minor changes.

In May 2011, Biery granted a temporary restraining order filed by an agnostic family who claimed that traditions at their son’s graduation, including the invocation and benediction, excluded their beliefs and violated their constitutional rights. Biery’s ruling prohibited Medina Valley seniors from asking audience members to join in prayer, bow their heads, end remarks with “amen,” or even use the word “prayer.” A federal appeals court later reversed the ban before the ceremony took place. Being overruled didn’t prevent Biery from coming under fire. Texas Gov. Rick Perry, who hadn’t yet officially announced his run for president, called Biery’s decision “reprehensible” and an “inappropriate federal encroachment into the lives of Americans.” His state’s attorney general, Greg Abbott, joined the South Texas district in helping fight the case.

Although Biery didn’t admonish any politicians by name, Perry appeared to be one of his targets. “To those in the executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves,” Biery said. Biery began his opinion by stating that the case was not about right to pray. Instead, Biery said, the case was about whether the Constitution allows for a governmental body to promote and support a religious viewpoint not held by a minority. Biery applauded the terms of the settlement. “The settlement memorialized in today’s Order signifies a bright point in our nation’s long and difficult effort to harmonize the competing interests written into the First Amendment,” he wrote.

The settlement prohibits MVISD employees from joining students in prayer circles or inviting others to pray. The district is also forbidden from displaying crosses, Bible verses or any other religious paraphernalia on school grounds. Wood, however, said teachers may still keep religious icons on their desks. Students are still allowed to deliver prayers at graduations, football games and other school events. Those moments must generically be introduced to the audience as simply “student remarks.”

Source: Education Week, 2/10/12, By AP

[Editor's Note: In his personal statement, Judge Bier acknowledged the lawyers in the case.  "To the lawyers who have advocated professionally and respectfully for their clients' respective positions: Bless you," he wrote.  The lawyers representing the school district, of the Walsh Anderson firm, are members of the Council of School Attorneys: Craig Wood, Joe De Los Santos, Stacy Castillo, Katie Payne, Elena Serna, Joe Tanguma, Jim Byrom, and Bob Russo.

In June 2011, Legal Clips summarized an article in the San Antonio Express-News reporting that a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit had issued a brief order overturning Biery’s injunction barring student-led prayer at Medina Valley High School’s graduation ceremony. A link to a Legal Clips summary of Judge Biery's opinion is available in the editor's note.]