Michigan Senate approves anti-bullying legislation

The Michigan Senate has passed legislation that requires school districts to develop anti-bullying policies, says the Detroit Free Press. Democrats in the Senate and the father of the student for whom the bill is named, however, object to language inserted at the last minute. One of the bill’s provisions will require school districts to have procedures in place to address bullying complaints. But the bill now also says its requirements do not “prohibit a statement of a sincerely held religious belief or moral conviction of a school employee, school volunteer, pupil, or a pupil’s parent or guardian.”

Kevin Epling, whose son, Matt, killed himself in 2002 after being bullied, said that the added language will allow anyone to bully a student and cite their religious beliefs.”This is just unconscionable. This is government-sanctioned bigotry,” said Epling. He added that he is  ”ashamed” that lawmakers added the language at the last minute.

Michigan would join at least 45 other states that have laws requiring public schools to adopt anti-bullying policies under the legislation passed Wednesday by the Republican-led Senate. The bill was approved by a 26-11, party-line vote and now advances to the Republican-led House. Democrats say the measure wouldn’t protect students and want a more detailed bill that outlines characteristics for which students can’t be bullied, such as sexual orientation, race and weight.

Republican supporters of the proposal say requiring districts to develop policies would be a key step toward ensuring that efforts are being made to clamp down on students harassing classmates. They argue that all students would be equally protected under the proposal. But Democrats were angered by the new language, saying it goes in the opposite direction of stopping bullying. The policies would apply to cyberbullying, but only cyberbullying that occurs using a device owned or under the control of a school district. Epling said that concerns him because most cyberbullying happens on personal electronic devices.

Source: Detroit Free Press, 11/3/11, By Lori Higgins

[Editor's Note:  Although Michigan is one of only a handful of states not (yet) to pass anti-bullying legislation, the State Board of Education has encouraged school districts to adopt anti-bullying policies, and provided a model, for years.  The model policy defines "bullying" and "harassment" to include behavior based on "any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity or expression; or a mental, physical, or sensory disability or impairment; or by any other distinguishing characteristic, or is based upon association with another person who has or is perceived to have any distinguishing characteristic."  The Michigan Association of School Boards' Resolutions and Bylaws committee recently passed an amendment to encourage member boards to consider the State Board of Education's model policy on bullying when reviewing, amending or adopting their local policy.  See NSBA's chart on state educational agency model policies and other resources on bullying to compare states.

In October 2011, Legal Clips summarized an article in the Lodi News-Sentinel reporting that Governor Jerry Brown had signed an anti-bullying bill into law that will create an anti-bullying system at all California schools.  The bill, known as “Seth’s Law,” requires school districts to institute anti-harassment policies and an online complaint procedure, with shorter timelines for investigating claims of bullying.]

Parent files suit against Indiana district over fees for bus service

Franklin Township public schools is being sued by parent Lora Hoagland over the school district’s decision to eliminate its free bus service and replace it with a nonprofit company that charges a fee for bus transportation, reports the Indianapolis Star. Hoagland, who is seeking reinstatement of free bus service, is also asking the Marion Superior Court to grant the suit class-action status so it can be brought  on behalf of other parents in the district.

The school district is confident it will prevail, but Hoagland seems to have some support. State Rep. Mike Speedy has asked the Indiana attorney general’s office to issue an opinion on the legality of the district’s new arrangement, and he’s considering drafting legislation that would prevent such arrangements in the future. The suit alleges that by allowing an outside organization to charge parents for bus service, the school district is violating a provision of Indiana’s constitution that says public education must be tuition-free.

Franklin Township cut bus service after local taxpayers rejected a referendum in May that would have brought the district an extra $13 million each year for seven years. Superintendent Walter Bourke said attorneys reviewed the decision and the district is on “solid legal ground.” “Any time that you make a decision that is not popular, you run the risk of people seeking legal enforcement of their point of view,” Bourke said. “I think we’re going to prevail if we ever get a day in court.” Speedy, on the other hand, believes the constitutionality of charging for bus service is a gray area of the law.

Central Indiana Educational Service Center (CIESC), which handles busing to Franklin Township Schools, charges parents $47.50 per month for the first child and $40.50 for each additional child. In 2010, the attorney general’s office issued an opinion saying that schools cannot charge bus fees, but this situation is slightly different because CIESC, not the schools, is charging parents. “The point is, parents shouldn’t have to pay for bus service, regardless of who’s charging them a fee,” said one of Hoagland’s attorneys, Tom Blessing . “That’s what taxes are for.”

Hoagland and Speedy question why the district can’t use some of the $17 million in its rainy day fund to cover the $2 million to $3 million annual cost of running the bus service for the next few years. Bourke said that if the district depletes its rainy day fund, it will no longer be able to use that money to back up its general fund, which covers teacher salaries and educational programs.

Bryan Corbin, spokesman for the attorney general’s office, said the office is reviewing the issue but wouldn’t say whether or when it would issue an opinion. Even if the office says Franklin Township Schools violated the law, its opinion would be nonbinding, so the district wouldn’t have to reinstate transportation.

Source: Indianapolis Star, 11/3/11, By Carrie Ritchie

[Editor's Note: In July 2010, Legal Clips summarized an Indianapolis Star article reporting that Indiana Attorney General Greg Zoeller had issued an advisory opinion that charging a fee to ride the bus to a public school violates the state’s constitution. While the attorney general’s conclusion might be good news for cost-conscious parents, experts predicted it might push some cash-strapped school districts to reduce bus service or eliminate it altogether for most students. Zoeller likened bus fees to tuition and said such fees violate a student’s right to a free public education. “[The opinion is] not legally binding in any way; it is legal guidance,” said Molly Butters, spokeswoman for the attorney general’s office.

See the editor’s note in the July 2010 post for background on the 2006 Indiana Supreme Court ruling that school district’s imposition of a $20 student services fee violated the state constitution.

In April 2011, Legal Clips summarized the Indiana Court of Appeals’ decision in Roman Catholic Archdioese of Indianapolis v. Metro Sch. Dist. of Lawrence Twp., holding that a state statute that requires a school district to provide transportation for nonpublic school students who reside along the district’s bus routes does not require the school district to provide transportation of those students to and from the nonpublic school they attend.]

Wisconsin Assembly approves bill that makes viewing pornography on school computers grounds for revoking teacher’s license

According to an Associated Press (AP) report in the Wausau Daily Herald, the Wisconsin Assembly has passed a bill that would make the viewing of pornography on a school district’s computer reason to revoke a teacher’s license. Under current law, a license can be revoked for immoral conduct, defined as conduct that is contrary to commonly accepted moral or ethical standards and that endangers the health, safety, welfare, or education of any student.

The bill, which  passed on a voice vote by the Assembly, makes clear that immoral conduct includes using the school’s computer to view, seek or download pornographic material. The legislation also requires the state Department of Public Instruction to post the name of the license holder under investigation on its website and any results of the inquiry. The bill now goes to Gov. Scott Walker for consideration.

Source: Wausau Daily Herald, 11/1/11, By AP

[Editor's Note: Meanwhile on November 1, 2011, Associated Press reported in WISC3 Madison that a bill that would allow Wisconsin schools to discriminate against convicted felons when considering whether to hire or fire them has temporarily stalled in the state Assembly. Current law allows for employers to discriminate against convicted criminals only if their offense directly relates to the job in question. Under the proposed legislation, it would be legal for any public or private school to refuse to hire or to fire any convicted felon, whether their crime relates to the job or not. It would only apply to felons who have not been pardoned.]

Maryland State Board of Education considering recommendation that student-athletes maintain 2.0 GPA

The Maryland State Board of Education (MBE) is considering adopting a recommendation, reports the Baltimore Sun, that would require students who play sports in high school to maintain a minimum 2.0 grade point average (GPA) to be eligible. Currently, 16 school districts in the state have such a requirement. A statewide committee of superintendents, principals and coaches made the recommendation

Some school board members expressed concern that such a standard might increase the dropout rate among students who are drawn to school for the chance to play on a team. “I think maybe it is time to rethink” the academic standards, said school board member Donna Hill Staton. “Why is athletics a privilege rather than part of their personal growth?”

A bill passed by the Maryland General Assembly last session requires the board to submit recommendations on minimum academic standards by the end of the year, but those standards do not have to include a specific GPA. If approved by MBE later in 2011, the minimum standards would become recommendations for school systems but would not be a regulatory requirement. Students would not have to maintain a cumulative 2.0 throughout high school, but a 2.0 in the marking period before and during the time they play on a team.

The question board members struggled with was whether a minimum GPA would be a motivation for students to work harder in classes to play sports or a barrier for others who might otherwise stay in school. School board member Ivan C. A. Walks suggested that the board get more creative in the way it approaches the GPA requirement. He said the board could consider allowing students to fulfill their high school physical education requirement by playing a sport.

Currently, even those students who are on a varsity team for four years must take a year of physical education to graduate. But students can take specialized physical education courses, such as fitness and conditioning. “Maybe you can get a grade in basketball,” Walks said. “If you can get a grade in conditioning, then can’t you get a grade in basketball?” School board member Kate Walsh asked the committee to draft exceptions to the minimum GPA for students who have special circumstances.

Source: Baltimore Sun, 10/25/11, By Liz Bowie

[Editor's Note: In November 2010, Legal Clips summarized the decision of a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit (LA, TX, MS) in Doe v. Silsbee Indep. Sch. Dist. affirming the lower court’s dismissal of the claims against both the district attorney and the school defendants. Citing a Texas Supreme Court decision, the appellate panel noted that students do not have constitutionally-protected interests in participating in extracurricular activities. As a result, it found that the student could not assert her position on the cheerleading squad as a basis for a due process claim of deprivation of a protected property interest.]

Pennsylvania Senate approves school voucher bill

The Philadelphia Inquirer reports that the Pennsylvania Senate, in a 27-22 vote, has approved a bill that would provide private school tuition vouchers to low-income students in failing public schools.  The proposed legislation would allow families with incomes of $29,000 or less to transfer their children to private or parochial schools by offering them state-funded vouchers of anywhere from $5,765 to $13,905, depending on the district. In the second year, the vouchers would also be offered to low-income students already attending private schools.

The bill mirrors many of the school choice proposals that the Gov. Corbett administration supports, and the governor called the bill  ”a strong education reform package that will help improve opportunities for thousands of school children throughout Pennsylvania.” However, the bill faces obstacles in the state House, which  has shown considerably less enthusiasm for tackling vouchers.  House Speaker Sam Smith made no promise to take up the voucher bill before the end of the year.

In addition to the voucher program, the Senate bill would boost the number of charter schools by giving school boards expanded powers to convert public schools to charters. It would also set new academic and fiscal standards. Another provision in the legislation would lift the $75 million cap on the Educational Improvement Tax Credit (EITC), which gives tax breaks to businesses that provide tuition funding for low-income students. The EITC program would increase to $100 million, with more hikes planned in future years. In all, 17 districts in the state have schools that would qualify for vouchers, according to a list prepared by the Senate Education Committee.

Source: Philadelphia Inquirer, 10/27/11, By Angela Couloumbis and Dan Hardy

[Editor's Note: The Pennsylvania School Boards Association provides background and analysis of taxpayer-funded voucher proposals at its site, including an explanation of the Pennsylvania proposals in the context of a national agenda to enact voucher initiatives.  PSBA provides resources for school leaders to read and share with other school officials and tax-payers.

In October 2011, Legal Clips summarized an Associate Press article in the Houston Chronicle reporting that state Rep. Matt Huffman was sponsoring a bill in the Ohio legislature that would provide vouchers for private-school tuition for low- and middle-class parents regardless of school performance and for qualifying families of nearly 200,000 current private school students. Vouchers currently are offered for students at schools that perform poorly. “I think the system should be based on need, not geography,” Huffman said. “I’m trying to fill a gap for people who don’t have a real option for a brick-and-mortar school and equalize the inequities in the current program.”]

Federal appellate court rules district’s decision not to renew contract did not violate employee’s due process or free speech rights

Cypert v. Indep. Sch. Dist. No. I-050 of Osage Cnty, No. 10-5122 (1oth Cir. Oct. 19, 2011)

Abstract: A three-judge panel of the U.S. Court of Appeals for the Tenth Circuit has ruled that an Oklahoma school board did not a violate a former high school secretary’s procedural due process rights by failing to conduct an impartial non-renewal hearing. The panel also concluded that the employee had failed to state a valid claim for First Amendment retaliation, or age or sex discrimination.The panel decided that the employee had failed to establish that her signing of a petition calling on the state grand jury to investigate school board members was a motivating factor in the non-renewal of her contract.

Facts/Issues: Louanne Cybert was employed by Independent School District I-050 (ISDI-050) as the high school’s secretary. After Ron Meadows was elected to the school board on a platform that included terminating a number of staff members, he made it known that Cybert was among those he wished to dismiss. In the fall of 2008, the board initiated a financial investigation that led to ISDI-050′s treasurer being terminated. Her successor concluded that the school district had a financial crisis. As a result, the school board informed 11 support employees, including Cybert, that their contracts might not be renewed for the 2009-10 school year. Cybert was the only employee who requested and was given an nonrenewal hearing.

After the hearing, the board went into executive session, which the superintendent attended. It found that ISDI-050 was facing a financial crisis requiring budget cuts, including a reduction in force among office staff. The board, therefore, voted to not to renew Cybert’s contract. After the end of the 2008-09 school year, the board decided to renew the contracts of the other 10 support employees notified of possible termination. In addition, the board retained the position of high school secretary, but did not offer it to Cybert. Instead, the board hired another person.

Cybert filed suit in federal district court against ISDI-050 and four members of the school board. She alleged that the nonrenewal was conducted in a manner that deprived her of her procedural due process rights. Cybert also alleged that the nonrenewal vote was in retaliation for her exercise of free speech rights because she had signed a state-court petition calling for a grand jury investigation into the activities of board members. She also alleged the non-renewal of her extra-duty contract violated Title VII  and the Age Discrimination in Employment Act (ADEA). The district granted the defendants summary judgment on all the claims.

Ruling/Rationale: The Tenth Circuit panel affirmed the lower court’s decision. Addressing the due process claim first, it stated that Cybert had raised four grounds on which she was denied procedural due process: (1) a biased tribunal; (2) the superintendent attended the executive session; (3) she was not allowed to confront or cross-examine the assistant treasurer, even though his financial calculations were the asserted basis for not continuing her employment; and (4) the hearing was a sham because there was no financial crisis.

After noting that Cybert could not assert her impartial tribunal claim against Meadows because “[a]s the district court noted … Meadows was not a member of the Board on June 8, 2009, and he took no part in the Board’s decision not to renew Cypert’s contract,” the panel focused on the remaining three board members. In the case of board member Jackson, it found “the only admissible evidence of Jackson’s bias is one statement to [the interim superintendent], about a year before the hearing,” which was not a substantial showing of actual bias with regard to the issue facing the [b]oard,” i.e., the financial crisis, when it decided to dismiss Cybert.

The panel found nothing in the record pointing to personal animosity or other bias against Cypert by the remaining two board members, Traster and Hendrix, beyond their association with Meadows and Jackson. The panel stressed that their association alone was an insufficient basis to find disqualifying bias. The panel then turned to the claim that the superintendent’s presence at the executive session tainted the process. Pointing out that “[o]ther courts have concluded an administrator’s mere attendance in a board’s executive session does not violate due process,” it concluded that because there was no evidence of anything beyond the superintendent’s presence, it could not find a due-process violation. The panel, likewise, found the confrontation/cross examination claim unavailing.

The panel rejected Cybert’s fourth argument that the hearing was a sham because there was no actual financial crisis. It found nothing in the record that “even remotely suggests [the assistant treasurer] harbored a bias against Cypert or deliberately manipulated his figures to support a nonexistent financial crisis.” A possibly faulty analysis did not demonstrate that the hearing was a sham. While the panel acknowledged that retaining the position of high school secretary, but not rehiring Cybert, was “somewhat troubling,” it concluded that fact standing alone provided “little to no evidence regarding the decision-making process.”

Moving to the retaliation claim, the panel applied the the five-step framework established by the Supreme Court in Garcetti v. Ceballos, 547 U.S. 410 (2006), and Pickering v. Board of Education, 391 U.S. 563 (1968).  Specifically, it focused on the requirement that the protected speech was a motivating factor in the adverse employment action. The panel found that, with respect to her participation in an investigation regarding Meadows’ son, “the record contains only general allegations failing to identify with particularity any statements or actions sufficient to satisfy her burden to identify the specific instances of speech underlying her claim.”  With respect to her signature on the grand jury petition, it concluded Cybert had failed to show the board was aware of signature, or any causal link to her non-reemployment.

Lastly, the panel agreed with the district court that Cybert had  failed “to establish a prima facie case of sex or age discrimination, and even if she had, she failed to produce any evidence that defendants’ asserted reason for non-renewal of the contract was a pretext for the type of discrimination addressed by Title VII and the ADEA.”

Cypert v. Indep. Sch. Dist. No. I-050 of Osage Cnty, No. 10-5122 (1oth Cir. Oct. 19, 2011)

[Editor's Note: In August 2011, a Tenth Circuit panel rejected the due process and retaliation claims asserted by ISDI-050's former treasurer, who was terminated after a financial investigation. The panel's opinion in Bunch v. Indep. Sch. District I-050 of Osage Cnty, ruled that the treasurer had no property interest in her employment on which to based a due process claim because she served as the pleasure of the school board.

Like the panel in Cybert, the Bunch panel concluded that the former treasurer's retaliation claim, which was also based having signed the petition, failed for much the same reason Cybert's claim did: she failed to establish that her signature on the petition was a motivating factor behind the termination.]

Federal district court in Pennsylvania grants school district summary judgement in African-American students’ Title VI suit

Blunt v. Lower Merion Sch. Dist., No. 07-3100 (E.D. Pa. Oct. 20, 2011)

Abstract: A federal district court in Pennsylvania has granted a school district summary judgment in a suit brought by a group of current and former African-American students who claim they were identified as disabled and placed in special education based on their race in violation of Title VI of the Civil Rights Act of 1964. After reviewing the record, the district court concluded that the students had failed to present evidence that the procedural irregularities they cited were related to their race. “To infer these … students were discriminated against merely because they suffered adverse action and are members of a protected class would render the prima facie requirement of intent meaningless.”

Framing the issue as “whether blacks are unfairly assigned as disabled,” the court stressed that in order for the students to continue the case under Title VI, they  ”[m]ust raise at least some reasonable inference that they were placed into classes and offered services by the School District due to intentional discrimination based on their race and not simply due to errors in evaluation.” It concluded that it could not infer the students were wrongfully placed in special education because of their race based the statistical evidence the students offered. The court determined that the students’ Fourteenth Amendment claim failed for the same reasons.

Facts/Issues: A group of African-American current and formers students attending school in Lower Merion School District (LMSD) filed suit against LMSD. Although the students had brought claims under the the Individual with Disabilities Education Act (IDEA), those claims were dismissed along with a number of others. The only remaining claims alleged Title VI and Equal Protection violations by LMSD. In response to LMSD’s motion for summary judgement, the students argued that they are not disabled and were wrongly placed in special education programs based on their race.  Although the court acknowledged that the students’ assertions were a “stark” departure from their most recent amended the complaint that the students are disabled, it assumed for purposes of the motion that all but two of the students are not disabled.

The students argued that as a result of their wrongful and racially discriminatory identification as disabled they were denied opportunities to take more challenging  courses in preparation for college. They relied heavily on statistical evidence of the disproportionate number of African-American students receiving special education services.

Ruling/Rationale: The district court granted LMSD’s motion for summary judgment on both the Title VI and Equal Protection claims.

The court stated that in order for the students to proceed on their Title VI claim, they must produce sufficient evidence showing a prima facie  case (sufficient until contradicted or overcome by other evidence).  They must show: (1) they are members of a protected class; (2) they are qualified to continue in pursuant of their education; (3) they suffered an adverse action; and (4) such action occurred under circumstances giving rise to an inference of discrimination. If LMSD proffers a legitimate, nondiscriminatory reason for the adverse action, the burden shifts back to the students to present evidence from which a jury could reasonably: (1) disbelieve the articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the action. The court noted that the Supreme Court had established in Alexander v. Sandoval, 532 U.S. 275 (2001) that there is no private cause of action for disparate impact under Title VI. Nonetheless, it found that evidence of disparate impact was a “important starting point” for determining the existence of intentional discrimination.

The court stressed that the students’ claim relied primarily on statistical evidence; and such evidence alone is insufficient to establish a prima facie case of intentional discrimination. The students had conceded that point. The students cited a number of procedural irregularities in the school district’s evaluation of students for special education programs, which they contended raised genuine issues of material fact about discriminatory intent. The court conceded that such irregularities may raise the inference of racial discrimination, but the students must still present evidence that those irregularities were related to their race.

The court concluded that the students had failed to show that LMSD’s actions, including errors in evaluation, occurred under circumstances giving rise to an inference of discrimination. The court stated: “[The students] simply have not put forth any evidence that supports their contention that they were ‘segregated’ intentionally into inferior educational programs in violation of Title VI.” In closing, the court stressed that, unlike a claim under IDEA, the Title VI framework requires the plaintiffs to “raise at least some reasonable inference that they were placed in classes and offered services by the School District due to intentional discrimination based on their race and not simply due to errors in evaluation.” The court disposed of the Equal Protection claim on the same ground.

Blunt v. Lower Merion Sch. Dist., No. 07-3100 (E.D. Pa. Oct. 20, 2011)

[Editor's Note: In June 2010, Legal Clips summarized the decision in Doe v. LMSD, in which a federal district court ruled in another case involving the Lower Merion School District.  The court held that LMSD’s use of racial demographics to redraw the attendance zones for its two high schools did not violate African-American students’ rights under section 1981, Title VI, or the Fourteenth Amendment’s Equal Protection Clause. The court concluded that the redistricting plan, which took away the ability of students who live in the area of the school district with the highest concentration of African-American students to attend the high school of their choice, did not discriminate on the basis of race in violation of the Equal Protection Clause, section 1981 or Title VI.]

Federal district court in Pennsylvania issues preliminary injunction ordering school district to allow student to distribute flyers promoting religious events

K.A. v. Pocono Mountain Sch. Dist., No. 11-347 (M.D. Pa. Oct. 20, 2011)

Abstract: A Pennsylvania federal district court has granted an elementary student’s motion for a preliminary injunction ordering a school district to allow the student to distribute flyers promoting religious events until the court decides the merits of the student’s First Amendment claim. Rejecting the school district’s argument that the student’s free speech claim should be to subject to forum analysis, the court applied the substantial disruption standard enunciated in Tinker v. Des Moines Indep. Comty. Sch. Dist., 393 U.S. 503 (1969). Based on that standard, the court concluded that the school district had failed to demonstrate that it reasonably foresaw disruption if it allowed distribution of the flyers.

Even assuming that forum analysis was appropriate, the district court concluded, neither the district’s original materials distribution policy nor its revised policy would pass constitutional muster because both policies were vague and arbitrary. It determined that neither policy satisfied the nonpublic forum standard requiring time, place and manner restrictions on distribution of materials to be  ”viewpoint neutral and reasonable in light of the school’s interest in the effectiveness of the forum’s intended purpose.”

Facts/Issues: K.A., a student at Barrett Elementary Center (BEC), wanted to distribute flyers promoting her church’s Christmas party to her classmates via their assigned “mailboxes.” K.A.’s teacher informed her that Principal Heidi Donohue had to approve the flyer before K.A. could distribute it. After K.A. submitted the flyer, her father contacted Donohue regarding its status.  Donohue informed him that non-school related flyers had to be approved by the superintendent and that the superintendent had not approved this one. Her father asked Donohue for a written explanation for the denial. She pointed him to Pocono Mountain School District (PMSD) Policy 913. After he sought further clarification, Superintendent Dwight Pfenning told him via email that Policy 913 provided the superintendent with the authority to prohibit the distribution of K.A.’s flyer.

The relevant portion of Poliy 913 states:

Any requests from civic organizations or special interest groups which involve such activities as patriotic functions, contests, exhibits, sales of products to or by students, sending promotional materials home with students, graduation prizes or fund raising must be examined to insure that such activities promote student interests primarily, rather than the special interests of any particular group. No individual, firm or corporation shall be permitted to engage in commercial advertising, promotion, solicitation or sales with regard to the student body, faculty, staff or the public on school district property or at any school sponsored activities unless the same shall have been previously approved in writing by the District.

K.A.’s father filed suit on her behalf alleging that PMSD’s refusal to approve the flyer for distribution violated K.A.’s First and Fourteenth Amendment rights. He then filed a motion with the federal district court seeking a preliminary injunction ordering PMSD to allow K.A. to distribute the flyers.

After the motion was filed, PMSD revised Policy 913. The relevant part of revised Policy 913 states:

The Board prohibits the use of students and staff members for soliciting, advertising, or promoting nonschool events, organizations, groups, or individuals during the school day or at school-sponsored locations or events not otherwise open to nonschool organizations, groups, or individuals.

During the school day, only literature and materials directly related to school district activities or that contribute significantly to district instructional programs may be disseminated to or through students and staff members. Prohibited materials may never be distributed or used at any time.

A review of any nonschool written materials under this policy will not discriminate on the basis of content or viewpoint, except that prohibited materials will be rejected, as will any materials that do not comply with Board policy, administrative procedures, or written announcements relating to the proposed nonschool sponsored materials.

Appropriate literature and materials relevant to nonschool organizations, groups or individuals may be disseminated by school sponsored organizations involved in such activities as fundraising and community service, contingent upon approval by the Superintendent and/or designee.

In its argument against the motion, PMSD asserted that K.A. will not succeed on the merits of her claims.  PMSD argued:  (a) K.A.’s speech was not personal; (b) Policy 913 comports with the First Amendment under a nonpublic forum analysis; (c) the school district’s actions also pass the Tinker test because the school acted out of concerns for safety and to avoid classroom disruptions; and (d) the suit is moot since the revised Policy 913 removes any ambiguities in the school district’s policy on the distribution of non-school related materials.

Ruling/Rationale: The district court granted K.A.’s motion for a preliminary injunction, allowing K.A. to distribute religious flyers to fellow students during non-instructional time at BEC, which includes the the school’s “mailboxes’ and literature distribution table.  It concluded that K.A. was likely to succeed on the merits of her free speech claim because both original Policy 913 and revised Policy 913 failed to pass the Tinker test. The court rejected PMSD’s argument that the speech at issue is properly subject to forum analysis. Instead, it found that the expressive speech at issue was student speech. It pointed out that forum analysis is typically employed in the context of speech at school when outside groups are seeking access to school facilities.

The court first noted that, in addition to the Tinker standard allowing school officials to prohibit personal student speech that causes substantial disruption, Supreme Court precedent allows school officials to regulate other type of student speech. Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986);  allows school officials to prohibit lewd, vulgar or profane student speech; Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988),  allows school officials to regulate school-sponsored speech; and Morse v. Frederick, 551 U.S. 393 (2007), allows school officials to restrict student speech advocating drug use. The court also stressed that student speech is “personal” if it is “voluntary and not dictated by an individual or group.”

Although the court allowed that the speech in question, i.e., the flyer, is ”something of a hybrid of commercial and personal speech,” it rejected PMSD’s contention that the flyer “was not personal speech, but rather a solicitation from a third-party organization, and therefore Tinker should not apply.” Instead, the court determined Tinker provided the appropriate analytical framework because it found the flyer could be reasonably viewed as an attempt to proselytize K.A.’s personal religious beliefs. Determining that none of the carve-outs articulated in Tinker‘s progeny applied here, the court stated the question “is whether the school can articulate a specific and significant fear of disruption if K.A. was allowed to pass out her flyers.” It determined that PMSD’s citation of  ”general safety concerns in allowing children to pass out flyers for events the school is unfamiliar with” was insufficient to satisfy the substantial disruption standard. The court, likewise, found PMSD’s argument “that allowing any type of third-party solicitation to be passed out would disrupt the learning environment” would not satisfy the standard. As a result, the court concluded that PMSD’s actions would fail the Tinker standard.

Although the district court had already disposed of the forum analysis argument, it stated that even assuming such analysis was appropriate, PMSD’s “actions were likely too broad and arbitrary to stand up to constitutional challenge.” While acknowledging “[t]he school district, as a nonpublic forum, would be entitled to put time, place, and manner restrictions on speech made on the school grounds so long as the restrictions were viewpoint neutral and reasonable in light of the school’s interest in the effectiveness of the forum’s intended purpose,” the court concluded “the Superintendent’s elusive criteria for determining which materials could be distributed is simply too broad and vague to be considered reasonable.” The court noted that the Superintendent’s “‘unfamiliarity’ with a given organization – without any procedure for establishing ‘familiarity’ – is a criteria ripe for abuse.”

K.A. v. Pocono Mountain Sch. Dist., No. 11-347 (M.D. Pa. Oct. 20, 2011)

[Editor's Note: Background on the suit is available in a March 2011 Legal Clips summary of an article in the Scranton Times-Tribune. The lawsuit, in which K.A. and her father are represented by Alliance Defense Fund, alleged that PMSD’s decision to censor the girl’s religious flyers violated her constitutional rights to free speech and equal protection.  ADF's news release about the court's ruling is available here.

In a case highlighting the use of forum analysis involving access by an outside group,  Legal Clips summarized a Minnesota federal district court's decision in Child Evangelism Fellowship of Minn. v. Minneapolis Special Sch. Dist. No. 1 in October 2011.  The court denied an outside religious organization’s motion for a preliminary injunction that would have required a school district to grant it the additional benefits provided to participants in the district-sponsored after school program. The court determined that the school district had created a limited designated public forum when it set up its after school program, which allowed it to restrict access to the forum provided the restrictions were reasonable and viewpoint neutral.]

Illinois labor board sides with Chicago teachers’ union; calls on court to prevent district from directly negotiating longer school day

A state labor relations board has sided with the Chicago Teachers Union, reports the Chicago Tribune. The union had asked the state attorney general’s office to seek an injunction preventing more of Chicago public schools from lengthening their days. The union’s legal victory, while not unexpected, seemed to rankle attorneys for Chicago Public Schools (CPS), who said the Illinois Educational Labor Relations Board already had decided the case before the two sides presented oral arguments at a public hearing. “It appears to me that the labor board had made up its mind before we came here. I think that’s extremely distressing,” said James Franczek, lead attorney for CPS’ Board of Education.

The labor board’s written decision called upon the courts to prevent CPS from negotiating longer school days directly with teachers and principals; to stop the practice of offering financial incentives to employees who vote in favor of the longer day; and to “cease and desist from unilaterally modifying terms” of the existing teachers contract. The board said that because of the “irreparable harm” caused by the district’s controversial waiver process, immediate court intervention was necessary to “restore the status quo.”

Union and CPS officials have been locked in a battle over longer school days since the summer, when Mayor Rahm Emanuel pushed for lengthening the day for Chicago Public Schools in an effort to improve student performance. A new state law will allow the district to set a longer schedule district-wide in 2012-13, but CPS leaders offered teachers a 2 percent salary bonus and schools as much as $150,000 if they voted to opt out of their teachers contract and adopt the longer day this year.

The attorney general’s office will next decide how to proceed with the case, but union officials believe the court could intervene within “a couple of weeks.” The labor board indicated in a statement clarifying its ruling that the nine schools that already have extended their days by 90 minutes will be unaffected by whatever the court chooses to do. The board is scheduled to rule on the merits of the union’s unfair labor practices complaint against CPS at a hearing in December.

Source: Chicago Tribune, 10/20/11, By By Joel Hood

[Editor's Note: Mr. Franczek, lead attorney for the Chicago Public Schools, is a COSA member.

In June 2011, Legal Clips summarized an article in the Chicago Tribune reporting that Gov. Pat Quinn had signed ambitious education reforms into law that will change how Illinois educators earn tenure and how districts remove ineffective teachers from the classroom. For the first time, tenure will matter less than performance. Federal education officials praised the legislation as a model for the nation. The measure set the table for a longer school day and school year in Chicago, which for years has had one of the nation’s shortest instructional days.]

Before school Bible club suing Oklahoma district over distribution of materials

A Bible club known as Owasso Kids for Christ (OKC), that meets prior to the school day at Northeast Elementary School, has filed suit against Owasso Public Schools (OPS) in federal district court, says the Tulsa World.  The club alleges that the school district has engaged in “censorship” by denying Owasso Kids for Christ the same opportunities to distribute information that groups such as the Boy Scouts and Girl Scouts have. Its suit charges, “the overbreadth of the district’s policy and practice chills the speech of community groups who seek to engage in private religious expression” through the distribution of flyers, posting of signs, open house presentations, and making of announcements. Local counsel Richard D. White Jr. and attorneys for the Alliance Defense Fund represent OKC.

OKC claims that in the summer of 2011, it was informed that it would no longer be permitted to distribute flyers, post signs or make public address announcements because it was regarded as a religious organization. Its suit contends that the refusal to allow Kids for Christ members to hand out flyers violates the district’s own policy not to restrict or deny the distribution of written material solely because of its political, religious or philosophical content. The legal complaint also alleges that the group was not permitted to place its promotional material on a bulletin board or “literature table” and was denied an opportunity to have a table at a school open house.

OKC contends that its members’ First and 14th Amendment rights have been violated. It is seeking an injunction ordering OPS to allow them immediately to distribute flyers, post signs, participate in open houses and make public address announcements “in the same manner as other community organizations.” In addition, OKC is seeking a declaratory judgment that OPS’ policy is unconstitutional.  The policy states that no literature will be distributed that contains primarily religious, objectionable or political overtones that may be beneficial to any particular group or business at the expense of others.

Responding to the suit’s allegations, OPS  Superintendent Clark Ogilvie said the district has never denied access to any religious groups in its schools. He claimed such organizations have met in the district’s facilities for years without discrimination but are asked to follow certain school policies.

Source: Tulsa World, 10/26/11, By David Harper

[Editor's Note: OKC's legal complaint states: "Pursuant to its policy and practice [OPS] prohibits OKC from (1) distributing its religious flyers at District schools  through the take-home flyer forum, (2) utilizing posting opportunities at the School, (3) participating in the School’s open house, and (4) using the School’s public address system on an equal basis with other community organizations based solely on the religious content and viewpoint of [OKC's] expression.” The complaint challenges OPS’ materials distribution policy on its face and as applied to OKC.

In ADF’s press release announcing its filing of OKC’s suit, it stated, “Despite the district’s stated concern about the religious mission of the club–which holds voluntary Bible studies before school and sponsors games, dances, and other social events for students and their parents–the district routinely allows communications by other community-led organizations that teach lessons on character and morality, including lessons from a religious perspective. Those groups include the Boy Scouts and the YMCA, which stated its mission on one of its recent fliers: ‘To put Christian principles into practice through programs that build healthy spirit, mind, and body for all.’ The district approved the fliers.”

The circumstances giving rise to the Owasso suit appear similar to those in Child Evangelism Fellowship of Minn. v. Minneapolis Special Sch. Dist. No. 1, a case summarized in Legal Clips in October 2011.  In that case, the school district removed a Christian student group from the district- sponsored after school program due to the description of the club and the proselytizing and prayer that took place at the meetings. It continued to allow the group to use school facilities for meetings and to distribute flyers. The federal district court denied the group’s motion for a preliminary injunction requiring the district to grant it the additional benefits provided to participants in the after school program. The court determined that the school district had created a limited designated public forum when it set up its after school program, which allowed it to restrict access to the forum provided the restrictions were reasonable and viewpoint neutral. 

ADF has been involved a number of these cases. In April 2011 Legal Clips summarized a story on KSTP 5 News reporting that a pro-life student club represented by ADF had sued St. Michael-Albertville School District (SMASD) alleging that it denied the “All Life is Valuable” group “club status” to meet at the school.]