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Suit claims Ohio board violated open meetings law at meeting to hire interim superintendent

The Cincinnati Enquirer reports that a parent has filed suit against the Kings Board of Education (KBOE) alleging that the school board violated Ohio’s open meetings law when a three-member majority of the board voted during a “special meeting” to hire an interim superintendent.  The suit charges the vote was conducted without proper public notice.  Kings’ school board President William Russell and newly elected board members Kim Grant and Robert Hinman acted as a board majority to vote to hire an interim superintendent during a May 15 special meeting.

The lawsuit argues that the public notice for the May 15 special meeting stated a discussion would be conducted by the board regarding the hiring of a superintendent search firm.  “The notice of the special meeting …led the public – and board members who were privy to the conspiracy – to believe that the meeting would solely consider hiring of a superintendent search firm,” the lawsuit states.

Valerie Naughton, the parent who brought the suit, said, “I am taking this action to force this board to operate in a legal and transparent manner, to put an end to the seeming collusion of several board members and to stop majority members from blindsiding others to push through what appears to be personal or political agendas.”

Naughton’s attorney, Konrad Kircher, is a former KBOE board member. Kircher said the lawsuit seeks to nullify the board’s recent action, and stipulates that neither Naughton nor Kircher will benefit financially from a favorable court ruling.

The Ohio School Boards Association has said that the board of education can fix a possible sunshine law violation by repeating the disputed discussion or action in a public meeting, providing the public with the requisite notice, and conducting the business of the public body in a legally convened meeting. However, a motion  to hold another vote to hire the interim superintendent during the board’s regular public meeting last week was voted down 3-2.

School board President William Russell and the school district’s attorney, William Deters II, declined to comment on the suit.

Source: Cincinnati Enquirer, 5/28/14, By Michael D. Clark

[Editor’s Note: In July 2012, Legal Clips summarized a decision by a New York Supreme Court (trial court) for Erie County in In Re Paladino holding that the Board of Education of the Buffalo City School District did not violate the New York Open Meetings Law, even though the Board had made technical errors in voting to convene two closed sessions.  The trial court held that the Board did not substantively violate the law because the matters discussed in closed session were allowed by the Open Meetings Law.] 

New York’s high court upholds discipline of teachers who legally picketed because protest jeopardized student safety

Santer v. Board of Educ. of East Meadow Union Free Sch. Dist., Nos. 51/52 (N.Y. May 6, 2014)

Abstract: The New York Court of the Appeals (the state’s highest court), in a 5-2 decision, has ruled that a school district that disciplined teachers for picketing on a public street in a manner that created a health and safety risk for students did not violate the teachers’ First Amendment free speech rights.  Applying the two-part test enunciated in Pickering v. Board of Educ. of Township High Sch. Dist. 205, 391 US 563 (1968), the Court of Appeals first concluded that the picketing was a form of speech on a matter of public concern.  The Court of Appeals further concluded, however, that the teachers’ interest in exercising their free speech rights in the manner they did was outweighed by the school district’s interest in guaranteeing students’ safety and maintaining effective operations at the school.  It also concluded that the district had carried its burden of proving that the discipline imposed was justified because the teachers had created a potentially substantial risk to student safety and actual disruption to school operations.

Facts/Issues: The petitioners are teachers at Woodland Middle School (WMS). Along with other members of the East Meadow Teachers Association (EMTA), they displayed picket signs from cars parked where parents normally drop off their children at school. The Board of Education for East Meadow Union Free School District (BUFSD) brought disciplinary charges against the teachers in connection with the picketing, alleging that the teachers’ actions jeopardized the students’ safety.

The picketing that led to the disciplinary action was part of an organized EMTA protest over the lack of a new collective bargaining agreement.  For the previous two and a half years, BUFSD and EMTA had been unable to reach an agreement. In response, WMS teachers had engaged in weekly protest activities, including picketing, for over two years. The teachers generally picketed on Monday and Friday mornings, carrying signs on the sidewalk in front of the school as students were arriving.

The weather forecast for one of the regularly scheduled pickets called for heavy rain.  To avoid picketing in the rain, the teachers voted to picket from their cars, by parking on both sides of the street in front of the school and placing their signs in the windshield.  The teachers’ cars (8) occupied the available parking spots on both sides of the street in front of WMS’s entrance, areas parents typically used to drop off their children.  The teachers’ cars were parked legally, and they left open a curb cut area created for dropping off students.  Because of the teachers’ cars, parents dropping off students had to double park and expose themselves and their child to traffic on the street.  It did rain that day.  Approximately 100 parents drop their children off at school on a typical day, but this day even more parents drove their children to school.

According to the principal, the parked cars created “a very dangerous situation” by forcing children to exit cars in the middle of the street and “walk[] between cars” to get to the school.  Neither the principal, nor any school official, asked the participants to move their cars or assisted children in crossing the street, however. The principal and dean of students watched the events unfold from inside the school building.

As the parents’ cars became more and more backed up, WMS’s principal called the police because, in his judgment, they were best equipped to handle the “traffic situation.”  Secretaries in WMS’ main office fielded a number of phone calls from parents concerned about the traffic back up on the street.  Ultimately, 16 of the 19 teachers who arrived late to work cited traffic as their excuse, and the school had to arrange coverage for the tardy teachers.  No student was hurt.  The picketing took place on the petitioners’ own time, and they arrived to work on time.

BUFSD instituted disciplinary proceedings against the teachers based on the following charge of misconduct:

[The teachers] “intentionally created an unnecessary health and safety risk by purposely situating [their] vehicle[s] alongside the curb of Wenwood Drive in front of the Woodland Middle School in order to preclude children from being dropped off curbside.  The action resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard.”

This instance was the only time that BUFSD took disciplinary action against a picketing teacher.  In addition, teachers continued to hold weekly picketing demonstrations after the parking event without being disciplined.

The arbitrators concluded that the petitioners intended to and did disrupt the student drop off and that the parked cars created a health and safety risk to children who had to be dropped off in the middle of a busy street in the rain.  Both petitioners were fined ($500 and $1,000).  They petitioned a state supreme court (trial level court) to vacate the arbitrators’ judgment.  The trial court rejected the petition.  The matter then went to the appellate division, which reversed the arbitrators’ decision, finding that it violated the petitioners’ First Amendment right of free speech. BUFSD then appealed to the Court of Appeals.

Ruling/Rationale: The Court of Appeals’ majority reversed the appellate division’s decision, and affirmed the imposition of the fines.

The majority prefaced its analysis by noting that public employers possess constitutional authority to restrain employee speech that is “job-related even when such restraints would be unconstitutional if applied to the public at large.”  While acknowledging that teachers retain their free speech rights, the majority stressed that those rights “are somewhat diminished” because of teachers’ status as public employees.

The majority analyzed the case using the two-prong test enunciated in Pickering v. Board of Educ. of Township High Sch. Dist. 205, 391 US 563 (1968) for weighing a governmental employee’s free speech rights against the employer’s interests.  The first prong is whether the speech relates to a matter of public concern.  If it does not, the employee’s speech has no First Amendment protection.  The majority determined that the speech in this case did relate to a matter of public concern. The labor dispute affected political and social issues that are important to the public.

The second prong of the Pickering test weighs the employee’s interests in free speech against the public employer’s interest in providing efficient public services. The majority ruled that in this case the school board’s interests predominated, because it found that the teachers’ actions compromised student safety and disrupted school operations.  The majority concluded that the “petitioners and the other participating teachers purposefully blocked a familiar student drop-off point by parking their cars along both sides of Wenwood Drive.”  This caused parents to drop their children off in the middle of the street, in the rain, instead of at the curb, creating a dangerous situation.  In addition, the teachers’ actions caused an unprecedented number of teachers to arrive late, resulting in a disruption to school operations.

In addition, the majority concluded that the teachers were not disciplined based on the content of their speech, because teachers had engaged in picketing on virtually a weekly basis before and after the car parking incident without being disciplined. Therefore, the evidence supported the finding that the petitioners “were disciplined because the parking demonstration was disruptive and created potentially unsafe conditions for students” and not as an attempt to suppress protected speech.

One justice contributed an opinion that concurred only in the judgment.  That justice took issue with the majority’s conclusion that the plaintiffs’ act of picketing was entitled to First Amendment protection, i.e. it satisfied the first prong of Pickering.  That justice stated: “I am troubled by the implication that intentionally disruptive and dangerous conduct can, if it is designed for the purpose of calling attention to the actor’s message, qualify for First Amendment protection.”  The opinion cited U.S. Supreme Court precedent for the proposition that disruptive picketing is not protected speech.

The dissenting opinion stood four-square with the appellate division’s conclusion that the school district had violated the teachers’ free speech rights.  It argued that the majority misapplied the second prong of the Pickering test because it found for the school district simply on the basis that disruption occurred as a result of the picketing.  The majority was required under Pickering, argued the dissent, to weigh that disruption against the employees’ free speech interests.  According to the dissent, the majority failed to engage in this weighing.  In sum: “The majority’s factual findings fail to address the constitutional question; whether the speech so affected the school as to disrupt its ‘effective and efficient fulfillment of its responsibilities to the public.’ Connick v. Myers, 461 U.S. 138, 150 (1983).”  The dissent concluded, “The majority’s decision is flawed not only because the majority has dubious authority to make findings of fact, but also because it misconstrues the Pickering balancing test and its application to the facts in the record.”

Santer v. Board of Educ. of East Meadow Union Free Sch. Dist., Nos. 51/52 (N.Y. May 6, 2014)

[Editor’s Note: In May 2014, Legal Clips summarized an article in Education Week reporting that the U.S. Supreme Court heard oral argument on April 28, 2014, in Lane v. Franks, Docket No. 13-483, which raises the question of whether a public employee’s truthful sworn testimony at a criminal trial is protected speech under the First Amendment.  The case also presents the issue of whether the employee’s superior was entitled to qualified immunity from the employee’s First Amendment retaliation suit, filed after the employee was terminated. ] 

Students who missed prom because of school imposed alcohol testing sue Florida district

A group of students who were barred from entering Jensen Beach High School’s (JBHS) prom until they were tested for alcohol consumption have filed suit in federal court against Martin County School District (MCSD), says TCPalm. Because of the length of time the testing took, none of the students made it inside the school to attend the prom.

The students arrived at the prom in a bus they rented for the occasion.  School officials found an empty Champagne bottle found on the bus, and required each student to undergo alcohol testing before any of the students could enter the prom. The students said the bottle was not theirs.  Thirty-eight students were involved, but the school resource officer only had two blood-alcohol level tests left.  School officials made all the students wait until school dean Lorie Kane retrieved more tests.  The entire process lasted more than an hour and a half, and by the time the students were cleared — each with a 0.00 blood-alcohol level — it was 11:55 p.m. and prom was over.

The lawsuit claims the school and those officiating at prom violated the students’ rights.  There was no evidence indicating the need for a search or to conduct a blood-alcohol level test, even though students signed a required zero tolerance form, which said students could be subject to such a test, according to the lawsuit. MCSD pokeswoman Michele Blanc declined to comment on the suit. 

The suit charges that the students were made to stand in line while waiting to be tested, and not allowed to talk with their classmates leaving the prom.  Students asked to call their parents so they could go home instead, but that was denied, the lawsuit said.  Students were not allowed inside until everyone was tested, even after they passed the test.

Source: TCPalm, 5/27/14, By Colleen Wilcox

[Editor’s Note: The legal complaint, which contains five counts, focuses primarily on Fourth Amendment claims that the search of the bus was unreasonable, the MCSD’s breath testing policy is unconstitutional, and even if testing is constitutional, the testing as applied to the students was unreasonable and unconstitutional.

Alcohol testing at school dances, and proms in particular, have become routine experiences for students.  In February 2011, Legal Clips summarized an Associated Press article in the Columbus Dispatch reporting that Medina High School planned to use breathalyzers to conduct random testing of students attending school dances.] 

Texas court issues TRO allowing church ministry at school 30 minutes after dismissal

The Lakelander reports that Texas District Court Judge F.B.  McGregor Jr. has issued a temporary restraining order (TRO) allowing the Prairie Valley Baptist Church to hold a weekly after-school ministry at Whitney High School (WHS) 30 minutes after student dismissal, pending a second court hearing at the end of this week.  The legal dispute began when Prairie Valley Baptist Church and Cedar Creek Baptist Church asked for permission to hold an adult led ministry at the school on a weekly basis.

The suit claims that the churches approached Whitney Independent School District (WISD) with their request in December 2013.  The suit alleges that WHS officials have given conflicting statements when denying the meetings in the months since the first request.  WISD counters that the meeting time requested, 15 minutes after the final bell, is not a time when the school is open to community use and would interfere with the district’s use of its facilities.  It also said that such meetings must be student led, and the Christian Worldview Ministry would be led by adults.  In issuing the TRO, the judge moved the starting time back to 30 minutes after the final bell.

Liberty Institute (LI) attorney Cleve Doty, who is representing the church, said, “The school has given us a number of reasons.  One of them, for instance, they declared the group illegal and at that point decided to reject them, and then they later said, ‘Well, under the first amendment, we’re allowed to discriminate.'”  He continued, “The most recent reason we’ve had from the school district is traffic—that two passengers in one car is a traffic congestion issue.”

The church also pointed to an email exchange between Prairie Valley Baptist Church youth minister Drew Tucker and WISD Superintendent Gene Solis. According emails released by LI, the superintendent wrote that if the school allowed the church to use the facilities, fringe groups would also have to be allowed to use them.

The law firm representing WISD disputed the claim that the school is preventing church access to spaces made available to other groups.  It pointed to the district’s policy stating that groups may hold meetings on campus provided they are student led and not regularly attended by “non-school persons.”  The law firm also stated that WISD does not have a “categorical prohibition” on the use of school facilities for religious purposes and has permitted religious organizations to use its facilities in the past.

Prairie Valley Baptist Church Pastor Rusty Penney said the church did not want a student-led group.  Church lawyers contend that the school policy dealing with student-led groups does not apply to after-school activities such as the Christian Worldview Ministry and say other groups have met after school.

In a written statement, Superintendent Solis said:

The district opens its facilities to the community, including churches and religious ministries, for educational, recreational, civic and social activities.  It is our practice to allow such access when the requested use does not conflict with school use or district policy.  Prairie Valley Baptist Church requested to use the Whitney High School campus at a time beginning almost immediately following the day’s last class. School activities and school business continue on the campus well after the final bell dismisses students from the day’s classroom instruction.

The Solis statement also pointed out the church was informed that facilities were not open to community use during the requested time period and that the church was welcome to apply to use the facilities at a time when they were available.

Source: Lakelander, 5/29/14, By Staff

[Editor’s Note: In its press release announcing the TRO, LI says that WISD is discriminating against the church in violation of the Texas Religious Freedom Restoration Act.  WISD’s law firm’s reference to student-led organizations/clubs is alluding to the federal Equal Access Act (EAA), which provides for access to the use of school facilities by all noncurricular student-led clubs on a equal basis during noninstructional time.

The EAA, which has been cited by student-led religious clubs seeking official recognition from their school district, has also been cited by a number of gay student clubs seeking recognition.  In March 2013, Legal Clips summarized an article in The Chambersburg Public Opinion reporting that the Chambersburg Area School District’s school board had voted 5-4 to reverse its decision and provide the Gay Straight Alliance with the same rights and privileges as any other noncurricular club at the school.

Wyoming seeking limited NCLB waiver for schools in need of improvement

The Wyoming Department of Education (WDE) plans to seek a limited waiver, according to the Star-Tribune, from one element of the federal No Child Left Behind Act (NCLB).  Unlike a number of other states, Wyoming is not seeking a flexibility waiver.  Instead, it is asking the U.S. Department of Education (ED) to allow Wyoming schools labeled as needing improvement to provide tutoring and remedial help to students who need it.

According to WDE’s Title I program manager Jennifer Peterson, the purpose of the request is to allow the state to keep options open for schools that could face tighter restrictions on federal funds under NCLB in the coming years.  NCLB imposes national proficiency standards that now require all students to be reading at grade level and do math at grade level.  It is unlikely, based on past standardized testing results, that most Wyoming schools will meet the 100% proficiency target.

As a result, Wyoming schools will face increasingly severe consequences over the next several years, as long as NCLB is in effect and Wyoming is not granted flexibility by ED.  Although 43 states have received waivers from these consequences in exchange for developing their own statewide school rating systems, Wyoming is not eligible to apply for a full waiver because its school rating system is not yet ready for ED’s seal of approval.

Wyoming is planning to request the limited waiver so schools can provide the tutoring, instead of forcing a student to turn to a private company or outside academic provider.  “This just gives schools and districts the option to become those providers,” Peterson said.  “It’s still up to parents.  Parents can choose who they would like their child to receive services from.”  North Dakota recently received this waiver, Peterson said.  Like Wyoming, North Dakota does not have flexibility from the broader consequences of No Child Left Behind.

Source: Star-Tribune, 5/29/14, By Leah Todd

[Editor’s Note: In May 2014, Legal Clips summarized an article in The Olympian reporting that ED had rescinded the State of Washington’s NCLB waiver.  Stripped of the waiver, the state is no longer exempt from onerous parts of NCLB, which set performance goals that schools across the country have been unable to meet.  As a further result of ED’s decision, school districts in the state will have to redirect roughly $38 million in federal funding toward private tutoring efforts next year, instead of using the Title I funds to pay for district programs for low-income students.  Washington is the first state to lose its waiver.]

Alabama’s tuition tax credit law held unconstitutional on legislative process grounds

Montgomery County Circuit Court Judge Eugene Reese has ruled that the Alabama Accountability Act (AAA) is unconstitutional and has issued an injunction barring further application of the law, reports the Montgomery Advertiser.  The law, enacted in 2013, allows parents of students in failing schools to apply for tax credits to use for private school tuition.  Businesses and individuals can also donate to scholarship funds for tuition in exchange for tax credits.

The suit was brought by Alabama Education Association (AEA) president Anita Gibson, state Sen. Quinton Ross Jr. and Lowndes County Superintendent Daniel Boyd against the state.

The AEA argued that the procedures used to pass the legislation violates the state constitution, including requirements that the legislation only address one subject, be read three times on three different days in each chamber, and maintains its original intent when amended.  Reese ruled that the tax credit and scholarship provisions added to the bill violated the original intent and single subject rules.

The AEA also argued that the law violates the state constitution by redirecting funding from public schools to private schools that are sectarian or denominational.  In his judgment, Reese concluded the AAA violated all three procedural requirements, and therefore that the law is “null and void.”  He said because it’s unconstitutional for those reasons, he doesn’t need to address the alleged violation of religion clauses separating church and state.

The injunction doesn’t affect tax credits for expenditures made during the 2013-14 year, but prohibits scholarship donations and tax credits from May 28, 2014 forward.

Source: Montgomery Advertiser, 5/29/14, By Kala Kachmar

[Editor’s Note: In September 2013, Legal Clips summarized an article in al.com reporting on AEA’s suit, which argued the AAA was not properly approved and will illegally divert public school money to religious institutions.] 

Court strikes down NC law eliminating teacher tenure; ruling applies only to those with tenure

Superior Court Judge Robert Hobgood has ruled that North Carolina’s recently enacted law eliminating tenure protections for teachers currently tenured is unconstitutional, according to an Associated Press report in the News & Observer. The judge’s ruling also calls into question another portion of the law, one that required local school districts to offer the best 25% of its longtime teachers four-year contracts that sign away those rights for a $5,000 raise.

Judge Hobgood held that tenured teachers have an established right to a layer of review beyond school administrators when they face firing.  He also concluded that the new law violates constitutional rights that protect contracts and prevent governments from taking a person’s property.  The judge said abolishing teacher tenure “was not reasonable and necessary to serve an important public purpose.”

Hobgood’s decision does not include teachers that were hired with the expectation of having tenure rights after four years but who had not yet reached that milestone. That means new teachers can be hired without a claim to the tenure rights that veteran teachers who have earned the job protection can continue to enjoy.

The ruling is likely to delay action by local school boards on the part of the law requiring them to offer the best 25 percent of their teachers four-year contracts in return for $5,000 in raises over the four years.  The law states that school boards have to offer the contracts by the end of next month.  Veteran teachers can choose whether or not to accept a contract if one is offered, but Friday’s decision means doing so entails signing away job rights they can keep throughout their career, said Ann McColl, an attorney with the North Carolina Association of Educators.

For over 40 years prior to enactment of the law eliminating teacher tenure, veteran teachers in North Carolina were protected from being terminated or demoted except for reasons that include poor performance, immorality and insubordination. Teachers earning career status after at least four years in a school district also have the right to a hearing where they can challenge their firing or demotion.

State Senate leader Phil Berger, R-Rockingham, promised that the ruling will be appealed.  Attorney General Roy Cooper has not decided whether to pursue an appeal, spokeswoman Jennifer Canada said.  Lawmakers last year gave legislative leaders the right to defend laws they pass if Cooper refuses.

Source: News & Observer, 5/16/14, By Emery P. Dalesio (AP)

[Editor’s Note: In December 2013, Legal Clips summarized a story from WRAL.com reporting that the filing of this lawsuit by the North Carolina Association of Educators and six individual teachers.]

OCR issues DCL to charter schools on disabled students, ELL, admissions, and discipline

The U.S. Department of Education’s (ED) Office for Civil Rights (OCR) has issued guidance on charter schools in the form of a “Dear Colleague” letter (DCL), reports Education Week.  The DCL was written by Assistant Secretary for Civil Rights Catherine E. Lhamon.  It provides specific guidance for charter schools related to student admissions, students with disabilities, English-language learners (ELL), and student discipline. 

The DCL emphasizes that all federal civil rights laws, including Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and Title II of the Americans with Disabilities Act of 1990, apply to charter schools with the same force as to tradition public schools.  In regard to federal civil rights laws, the DCL states: 

These laws extend to all operations of a charter school, including recruiting, admissions, academics, educational services and testing, school climate (including prevention of harassment), disciplinary measures (including suspensions and expulsions), athletics and other nonacademic and extracurricular services and activities, and accessible buildings and technology.

On the subject of admissions, the DCL points out that because charter schools have choice-based admissions, they “need to be mindful of the rights of children and parents in the community when publicizing the school to attract students and when evaluating their applications for admission.”  It also stresses that charter schools must avoid “admissions criteria that have the effect of excluding students on the basis of race, color, or national origin from the school without proper justification, and they cannot bar students from admission on the basis of disabilities.”  The DCL, in addition, warns that charter schools are required to be in compliance with the local school district’s desegregation plan, if there is one.

In regard to disabled students, the DCL states that charter schools must provide such students with a “free appropriate public education.”  As to ELL students, charter schools must take “affirmative steps” to help them “overcome language barriers so that they can participate meaningfully in their schools’ educational programs.”  On the subject of student discipline, the DCL echoes more general federal guidance issued in January 2014 that called on schools to back off of zero tolerance policies and ensure that disciplinary policies and practices do not have a “disparate impact” on disabled students or students who are racial or ethnic minorities.

Source: Education Week, 5/14/14, By Evie Blad

[Editor’s Note: OCR’s DCL acknowledges that charter schools provide students with “additional meaningful opportunities to receive a high-quality education” and voices ED’s support for establishing “high-quality public charter schools from which all students can benefit.”

In January 2014, Legal Clips published a Sua Sponte item reporting on OCR’s student discipline guidance.  While the guidance focused on race, it also reminded schools that “Federal law also prohibits discriminatory discipline based on other factors, including disability, religion, and sex.”]

Oregon district sued for allowing police to question student without parental permission

According to The Oregonian, the parents of a student who was questioned by police at school without parental consent have filed suit in federal court against the Beaverton School District (BSD) and the Beaverton Police Department (BPD).  The suit claims the student’s Fourth and Fourteenth Amendment rights were violated.

The suit alleges that the student was suspended in April 2013 when the principal at Raleigh Hills K-8 school learned the student had drawn a picture of a person being hung by a noose during class.  Two days later, school staff including a school psychologist met with the parents at which time it was determined that the student posed no threat and was allowed to return to school that morning.

The suit claims that during that meeting the student’s mother requested that the student not be interviewed by the police.  The suit charges that after the parents left the meeting school officials called BPD, who questioned the student.  The parents were not notified until after the questioning was completed. 

The suit also claims BPD and BSD have practices of “seizing children from classrooms and subjecting them to custodial police interrogations without a warrant, parental consent or probable cause and exigent circumstances.”  The suit is seeking compensatory damages of $100,000 and punitive damages. 

Both BSD and BPD declined to comment on the suit.

Source: The Oregonian, 5/14/14, By Everton Bailey Jr.

[Editor’s Note: The legal complaint contains five counts, which include a claim for injunctive relief seeking a court order barring BSD officials from seizing students “from classrooms for non-school related activities without a warrant, parental consent or probable cause and exigent circumstances.”

In July 2011, Legal Clips summarized an article in the Washington Post reporting on a Fairfax County Public Schools student who was removed from class and questioned by police after classmates reported that the student had been heard saying he’d smoked marijuana with five other boys, days earlier, after school hours, off campus.  The article stated that in the aftermath of  the U.S. Supreme Court’s decision in J.D.B v. North Carolina, lawyers, school leaders and advocates have begun to weigh how the ruling could reshape student questioning.  Many experts expect more Miranda-style warnings from police, and more caution from educators.  The ruling also could prompt more police in schools to call parents before questioning, said lawyer Ken Schmetterer, who wrote a brief on the case for the American Bar Association.

In May 2013, Legal Clips reviewed the decision by the Kentucky Supreme Court in N.C. v. Kentucky, holding that that a high school student, who was detained in the school office for questioning by an assistant principal 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.”] 

Massachusetts Supreme Judicial Court upholds daily recitation of the Pledge of Allegiance

Doe v. Acton-Boxborough Reg. High. Sch. Dist., No. SJC-11317 (Mass. May 9, 2014)

Abstract: The Massachusetts Supreme Judicial Court has upheld a state law requiring the daily recitation of the Pledge of Allegiance in schools.  It concluded that the Pledge does not violate the state’s equal protection or anti-discrimination laws because the Pledge is a patriotic exercise, whose nature is unaltered by the phrase “under God,” and participation in recitation of the Pledge is voluntary.

Relying the U.S. Supreme Court’s decision in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), the Massachusetts Supreme Judicial Court confirmed that no Massachusetts student may be compelled by law to recite or participate in any ceremony of which the Pledge is a part.  It found the equal protection claim failed because there is no classification, much less a suspect one, created by the practice of reciting the Pledge.  In regard to the argument that the law is stigmatizing, marginalizing and exclusionary for students who are nonbelivers, the court concluded that such feelings are “not legally cognizable for purposes of the equal rights amendment.”  Finally, it concluded that recitation of the Pledge did violate the state’s antidiscrimination law for the same reasons that it does not run afoul of the state’s equal protection guarantees.

Facts/Issues: A group of students and their parents, all atheists and Humanists, and the American Humanist Association filed suit against the Acton-Boxborough Regional School District (ABRSD), claiming that ABRSD’s daily recitation of the Pledge of Allegiance violates the state constitution’s equal protection clause and its statutory equivalent.  The plaintiffs sought declaratory and injunctive relief.

The Pledge is recited, in ABRSD’s schools and in schools across Massachusetts, pursuant to a state statute that provides that “[e]ach teacher at the commencement of the first class of each day in all grades in all public schools shall lead the class in a group recitation of the ‘Pledge of Allegiance to the Flag.'”  ABRSD does not require participation by teachers or students. The school superintendent’s affidavit stated that “[f]or both students and teachers, participation in the Pledge of Allegiance is totally voluntary.  Any teacher or student may abstain themselves from participation in the Pledge of Allegiance for any or no reason, without explanation and without any form of recrimination or sanction.”

The plaintiffs’ case can be summarized as follows.   They know that they have the right to refuse to participate in the flag-salute ceremony, but they want to participate in it.  As atheists and Humanists, they “do not believe that the United States of America or any other country is ‘under God.'”  The Pledge “suggests that all good Americans believe in God” and that others, like them, “who don’t believe in God, aren’t as good as others who do believe.”  The parents claim that “[i]t is inappropriate for [their] children to have to draw attention to themselves by not participating, possibly leading to unwanted attention, criticism and potential bullying,” and that at their children’s ages, “‘fitting in’ is an important psychological need.” 

There was no evidence that the children have ever been subjected to any type of punishment, bullying or other mistreatment, criticism, condemnation, or ostracism as a result of not participating in the Pledge or not reciting the words “under God.”

The plaintiffs claimed that the Pledge violated the state constitution’s equal protection clause and the state’s parallel statutory guarantee of equal protection because of the inclusion of the phrase “under God” in the Pledge. The plaintiffs did not raise any claims under the establishment or free exercise clauses of the U.S. or Massachusetts Constitution.

The Massachusetts Constitution provides that “Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.” (Declaration of Rights, as amended by art. 106 of the Amendments (art. 106), commonly referred to as the equal rights amendment.)  The Massachusetts Supreme Court noted that “Article 106 does not expressly mention religion. The plaintiffs treat the word ‘creed,’ which is found in art. 106, as synonymous with ‘religion.’  Neither the parties nor any of the amici claim that the difference in terminology is significant for present purposes, and we find no reason to differentiate between those terms here.”

Chapter 76, § 5, of the state’s general laws provides, in relevant part, that “[n]o person shall be excluded from or discriminated against in admission to a public school of any town, or in obtaining the advantages, privileges and courses of study of such public school on account of race, color, sex, gender identity, religion, national origin or sexual orientation.”

Both sides moved for summary judgment.  The trial court concluded that based on the legislative history of the Pledge law, the inclusion of the phrase “under God” had not converted the recitation from a political exercise to a religious exercise.

Ruling/Rationale: The Massachusetts Supreme Court unanimously affirmed the lower court’s decision, with one justice contributing a concurring opinion.

The court reviewed the history of the Pledge of Allegiance, condensed as follows from the text of the court’s opinion (citations omitted):

The pledge first appeared in 1892 in a nationally circulated magazine for American youths….The magazine proposed that students recite the following words as part of a flag-salute ceremony that would take place in the Nation’s schools, designed to instill a sense of national unity and patriotism: “I pledge allegiance to my Flag and the Republic for which it stands: one Nation indivisible, with Liberty and Justice for all.”  The phrase “one Nation indivisible” was particularly meaningful at that time, in light of the fact that the country had, in its recent past, fought and survived the Civil War with the national unity intact.

The pledge was first adopted by Congress in 1942, during World War II. The pledge was one part of a joint Congressional resolution establishing “a detailed set of ‘rules and customs pertaining to the display and use of the flag of the United States of America.'”…In 1954, Congress amended the pledge to include the words “under God.”  The amendment came during the escalation of the Cold War, and there is some indication in the legislative history that the amendment was intended to underscore that the American form of government was “founded on the concept of the individuality and the dignity of the human being,” which is grounded in “the belief that the human person is important because he was created by God and endowed by Him with certain inalienable rights which no civil authority may usurp.”

While conceding that the phrase “under God” has a “religious tinge,” the Massachusetts Supreme Court emphasized that courts “have consistently concluded that the Pledge, notwithstanding its reference to God, is a fundamentally patriotic exercise, not a religious one.”  It stated that because of the patriotic nature of the Pledge, “all of the Federal appellate courts that have considered a First Amendment challenge to the voluntary recitation of the pledge in public schools, with the words ‘under God,’ have held the practice to be constitutional.”

The court noted that as a matter of Federal constitutional law no student can be required to recite the Pledge, based on the U.S. Supreme Court’s decision in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).  The court stated:

Although this court has not been called on previously to so state, we take this opportunity to confirm what has been obvious and understood to be the case for the decades since the Barnette case was decided: no Massachusetts school student is required by law to recite the pledge or to participate in the ceremony of which the pledge is a part.  Recitation of the pledge is entirely optional. Students are free, for any reason or for no reason at all, to recite it in its entirety, not recite it at all, or recite or decline to recite any part of it they choose, without fear of punishment.

The Plaintiffs’ argument was based on Article 106 of the Massachusetts Constitution, which states: “Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.”  In Finch v. Commonwealth Health Ins. Connector Auth., 459 Mass. 655 (2011), S.C., 461 Mass. 232 (2012), the Massachusetts Supreme Judicial Court ruled that the classifications in Article 106 are subject to strict scrutiny.  The plaintiffs argued that the Pledge practice treats them differently because of their religion (both parties agreed that the term “creed” in Article 106 encompasses religion) and that the difference in treatment could not withstand strict scrutiny analysis. 

The court rejected the plaintiffs’ argument, finding that the recitation of the Pledge did not create any classifications, much less one based on religion (creed):

Here there is no discriminatory classification for purposes of art. 106 — no differing treatment of any class or classes of students based on their sex, race, color, creed, or national origin.  All students are treated alike.  They are free, if they choose, to recite the pledge or any part of it that they see fit.  They are entirely free as well to choose to abstain.  No one is required to say all or even any part of it.  And significantly, no student who abstains from reciting the pledge, or any part of it, is required to articulate a reason for his or her choice to do so.

The court also relied on the holding in Freedom From Religion Found. v. Hanover Sch. Dist., 626 F.3d 1, 4-5 (1st Cir. 2010), cert. denied, 131 S. Ct. 2292 (2011).

Regarding the plaintiffs’ contention that Pledge law denies them equal protection because it stigmatizes, marginalizes and excludes students who are nonbelivers, the court determined that the evidence did not support a finding that the students “actually have been treated or perceived by others as ‘outsiders,’ ‘second-class citizens,’ or ‘unpatriotic.’”  It explained that “this very limited type of consequence alleged by the plaintiffs — feeling stigmatized and excluded — is not cognizable under” the state equal rights amendment.  The court concluded:

Where the plaintiffs do not claim that a school program or activity violates anyone’s First Amendment religious rights (or cognate rights under the Massachusetts Constitution), they cannot rely instead on the equal rights amendment, and claim that the school’s even-handed implementation of the program or activity, and the plaintiffs’ exposure to it, unlawfully discriminates against them on the basis of religion.

Lastly, the court disposed of the plaintiffs’ claim under the state’s anti-discrimination law finding that it failed for the same reasons that their equal rights claim did.

Doe v. Acton-Boxborough Reg. High. Sch. Dist., No. SJC-11317 (Mass. May 9, 2014)

[Editor’s Note: In April 2014, Legal Clips summarized an article in the Asbury Park Press reporting that a family filed suit in state court against the Matawan-Aberdeen Regional School District (MARSD) charging that the inclusion of the phrase “under God” in the daily recitation of the Pledge of Allegiance violates the New Jersey constitution.  The family, who is not identified in the suit, is being represented by the American Humanist Association (AHA). 

In June 2012, Legal Clips summarized the Superior Court decision in Doe v. ABRHSD which held that the state law requiring the daily recitation of the Pledge of Allegiance in public schools does not violate the state constitution’s equal protection clause and statutory guarantee of equal protection, or the school district’s anti-discrimination policy because of the inclusion of the phrase “under God” in the Pledge.] 

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