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North Carolina Supreme Court hears arguments in suit challenging the constitutionality of state’s voucher program

The News & Observer reports that the North Carolina Supreme Court heard arguments in a suit challenging the constitutional validity of the state’s private school voucher program. The justices asked what constituted a “public purpose,” questioned interpretations of the state constitution and its framers’ intentions, and asked about guarantees for a quality education from schools and teachers not governed by state standards or oversight.

The voucher program, struck down by Judge Robert Hobgood in August, would have provided low-income families who wanted to send their children to private schools as much as $4,200 annually in taxpayer dollars. Hobgood declared it a violation of the North Carolina Constitution, saying “appropriating taxpayer funds to unaccountable schools does not accomplish a public purpose.”

Lauren Clemmons, an assistant state attorney general, argued that the voucher program approved in 2013 “supplements educational choices available to the state’s low-income students” and doesn’t “supplant the uniform system of free public schools.” Burton Craige, an attorney representing the plaintiffs, countered, “North Carolina has many fine private schools, but the problem with this legislation is these funds flow to all private schools, regardless of quality,” He also told the justices, “The legislature can’t hand over millions of dollars based on the blithe assumption that anything that calls itself a school is providing a real education.”

In arguments that touched on North Carolina’s past, Craige noted that a program adopted nearly six decades ago in which families hoping to evade desegregation laws could get vouchers for private schools was declared unconstitutional after passage of the Federal Civil Rights Act of 1964. “If this General Assembly wants to give taxpayer funds to private schools, it can do so only through amendment to the constitution,” Craige said.

Attorneys representing lawmakers argued that North Carolina public schools weren’t working for many students from low-income families, arguing that five of six students from economically disadvantaged families were failing one or both of the end-of-grade reading and math tests given by public schools. They called vouchers a ” parental choice program” for low-income families.

Richard Komer, an attorney with the Institute for Justice, which represents some families with vouchers, argued that the private schools are accountable to the parents of their students. He added that it was the parents, not the private schools, which benefitted from the public funds. “Parents know what’s best for their children and will seek an adequate, decent, education for their children,” Komer said.

Bob Orr, a former North Carolina Supreme Court Justice, a former North Carolina Court of Appeals judge and a member of the legal team challenging the vouchers, argued that as approved, the voucher program did not require that students approved for vouchers be from failing schools. Nor did it require them to show that they were struggling. Orr and Craige said that many religious schools require students to adhere to the tenets of the faith with which the school is affiliated. Nearly two-thirds of the private schools in North Carolina are unaccredited, Craige noted and there would be no way to ensure that their teachers were well-trained. ” Where’s the public benefit in a standard-less education in which the state has no ability to impose at least certain parameters on curriculums and standardization of teachers?” Orr asked.

Source: News & Observer, 2/24/15, By Anne Blythe

[Editor’s note: in February 2015, Legal Clips published a Sua Sponte item reporting that the National School Boards Association (NSBA) had filed an amicus brief in Richardson v. State of North Carolina urging the North Carolina Supreme Court to hold the state’s voucher program unconstitutional. The brief argues that the program fails to pass constitutional muster on two grounds: first, the voucher program’s lack of accountability harms North Carolina taxpayers. Second, the program harms public education in two ways: (1)  it undermines the significant role of public education in America; and (2) the program’s diversion of public dollars away from schools harms North Carolina public schools.] 

Group of North Dakota journalism students seeks to legislatively overturn U.S. Supreme Court school-sponsored speech precedent

Courthouse News Service reports that six journalism students from the University of Jamestown authored a  preliminary bill, being sponsored by state Rep. Alex Looysen. House Bill 1471 (HB 1471) would grant students many of the protections enjoyed by professional reporters, despite the U.S. Supreme Court’s  ruling in Hazelwood School District v. Kuhlmeier. The proposed legislation would guarantee students their First Amendment rights in broadcast and publication.

The proposed bill states:  “A student journalist has the right to exercise freedom of speech and of the press in school-sponsored media, regardless of whether the media is supported financially by the institution or by use of facilities of the institution or produced in conjunction with a class in which the student is enrolled.” Restrictions on student journalism have been problematic since the 1988 Supreme Court ruling in Hazelwood where a school principal prohibited several school newspaper articles from being published because he deemed them inappropriate.

HB 1471 does not protect libelous or slanderous comments, and contains a provision protecting the right to privacy. The bill requires that each school district have a written freedom of expression policy for students, in accordance with the legislation.

Source: Courthouse News Service, 2/25/15, By Levi Lass

[Editor’s Note: HB 1471 applies to both public institutions of higher education and public schools. In May 2014, Legal Clips summarized an article in the Ledger reporting that Abbey Laine, the editor of Lakeland High School’s (LHS) student magazine Bagpipe, wanted to write an article about the proposed state constitutional amendment that would legalize medical marijuana in Florida. However, Janell Marmon, LHS’s journalism teacher, barred the story and was supported by school administrators. “It does not fit into what we do.  That type of article does not fit our audience,” said Frank Webster, director of the school’s Multimedia Communications Academy.  “We are primarily about marketing and (being) a mouthpiece for Lakeland High and Harrison School of the Arts.”  LHS Principal Arthur Martinez also rejected her request.  “It really depends on what the teacher wants to print in their classroom. I leave it up to them as to what they want to print,” Martinez said.]


Amended gun bill gets support of Wyoming school officials

According to the Casper Star Tribune, the legislative effort to allow concealed weapons on school grounds was stopped when Wyoming House Bill 114 was amended to put the question of guns in the hands of local school boards. The amendment, which passed a committee vote and is headed to the Senate floor, changed the bill so much that it’s become a substitute for the original.

Many students, school officials and education advocates in the state support the amendment. Brian Farmer, executive director of the Wyoming School Boards Association, spoke in favor of the amendment. “We believe this is a local issue,” he said. “Boards should be able to hear from local parents, local teachers and local principals…about how they would create policy surrounding concealed carry.” He highlighted concerns from his membership about retaining officials for high school sporting events. Many, he said, have indicated they would quit if the guns were allowed at games.

A recent survey at the University of Wyoming ( UW) found that almost two-thirds of students oppose the idea of guns on campus, with many students saying they would have safety concerns if they were allowed. UW’s Faculty Senate also voiced concern over guns on campus in a December resolution. Yet proponents for guns at schools often argue that they make schools safer, negating the need for an unrealistic response time by law enforcement and scaring would-be assailants because of the known presence of guns.

However, school officials  and insurance companies take an opposing view. “It does not take a gun to stop a gun,” said Andrea Nester, who is in charge of risk management for the Natrona County School District.  She also believes that it would increase risk by giving students greater access to weapons, especially at high schools, where the majority of school shootings involve someone from the school, according to FBI statistics. According to Nester, the added risk would also make it difficult for the district to buy insurance. She said their insurance company has already told them as much.

Tim Moss, who’s been an insurance broker for the district for the last 10 years, said representatives from Zurich Insurance told district officials the company would drop them if a bill allowing guns at schools passed. Zurich, which serves the two largest school districts in the state — Laramie County School District 1 and Natrona County — was worried about the increased accessibility of guns, he said.

If the district were dropped, Moss expressed doubt that he would be able to find the coverage it needed. “There are simply some coverages that other providers can’t offer,” he said, noting extra liability protection from lawsuits. Passage of the bill could also result in higher premiums, for which taxpayers would ultimately pay, he said.

Source: Casper Star Tribune, 2/26/15, By Nick Balatsos

[Editor’s Note: In July 2013, Legal Clips summarized an article in The New York Times reporting that school districts considering arming employees are facing a formidable economic obstacle: insurance carriers who are threatening to increase premiums or cancel coverage completely. During legislative sessions in 2013, seven states enacted laws permitting teachers or administrators to carry guns in schools.] 


Centers for Medicare and Medicaid Services reverses the “free care policy” and will now allow schools to bill Medicaid for services provided to eligible students

According to Reutersthe Centers for Medicare and Medicaid Services (CMS) has reversed federal policy allowing schools to bill Medicaid for health services such as asthma screenings, vaccinations and care for chronic diseases provided to some low-income students. Under a 1997 CMS policy, known as the “free care policy” if schools provided a service to the public for free, the schools couldn’t ask Medicaid to pay for that service when provided to a Medicaid-eligible student, even if Medicaid would pay for the service if provided in a medical setting. Exceptions were allowed for some children with disabilities. 

“Because of the rule, schools shied away from offering many services,” said Mary-Beth Malcarney, assistant research professor with George Washington University’s Department of Health Policy. “It also impacted the ability of low-income schools to hire health care staff, because they could not receive funding from Medicaid.”

In 2004, the Department of Health and Human Services Departmental Appeals Board struck down the policy, concluding that it had no basis in federal law. In 2013, a California court also rejected the policy. But the issue remained cloudy. In  December 2014, CMS finally reversed the “free care policy” in a letter to State Medicaid Directors aiming to help remove “any ambiguity” about the policy.

Source: Reuters, 2/24/15, By Daniel Gaitan

[Editor’s Note: CMS’ December 2014 letter states: In light of the DAB ruling, CMS is withdrawing its prior guidance on the “free care” policy as expressed in the School-Based Administrative Claiming Guide and other CMS guidance. As indicated by the DAB, the free care policy as previously applied effectively prevented the use of Medicaid funds to pay for covered services furnished to Medicaid eligible beneficiaries when the provider did not bill the beneficiary or any other individuals for the services. The goal of this new guidance is to facilitate and improve access to quality healthcare services and improve the health of communities.]


Sua Sponte: U.S. Attorney files “Statement of Interest” opposing Michigan district’s motion to dismiss transgender student’s Title IX/Equal Protection Clause sex discrimination suit

The federal government has filed a “Statement of Interest” opposing the defendant Wyandotte Public Schools’ motion to dismiss Seth Tooley’s lawsuit claiming he was discriminated against based on his status as a transgender male in violation of Title IX and the U.S. Constitution’s Equal Protection Clause. Among the federal officials signing the statement are the General Counsel of the U.S. Department of Education, the Acting Assistant U.S. Attorney General and attorneys from the U.S. Department of Justice’s Civil Rights Division. The suit is currently before a U.S. magistrate judge for the the U.S. District Court for the Eastern District of Michigan.

The statement makes three arguments in support of the transgender student’s Title IX/Equal Protection Clause claims. First, Title IX and the Equal Protection Clause prohibit sex discrimination against all Persons, including transgender individuals. Second, Title IX and the Equal Protection Clause prohibit discrimination against an individual based on that individual’s gender identity or transgender status. Finally, Title IX and the Equal Protection Clause prohibit discrimination against an individual, including a transgender individual, on the basis of sex stereotypes.

The federal government is asking the court to “hold that the prohibition of sex discrimination under Title IX and the Equal Protection Clause encompasses discrimination on the basis of transgender status, gender identity, and sex stereotyping. Further, this Court should find that Plaintiff has stated plausible claims for relief under Title IX and the Equal Protection Clause and deny Wyandotte’s Motion to Dismiss these claims.”


[Editor’s Note: In May 2014, Legal Clips summarized an article in Education Week reporting that the U.S. Department of Education (ED) had issued uupdated Title IX guidance clarifying that the civil rights law’s protection extends to all students, regardless of sexual orientation or gender identity. In the Editor’s Note to that summary, NSBA responded to ED’s assertion as follows:

 Tyrrell v. Seaford Union Free School District, 792 F.Supp2d 601, 623-24 (2011) summed up the law on Title IX and sexual orientation this way:

Sexual orientation is not a protected class under Title VII or, similarly, under Title IX.  See Kiley v. American Society for Prevention of Cruelty to Animals, 296 Fed.Appx. 107, 109 (2d Cir.2008) (summary order), cert. denied, 558 U.S. 934, 130 S.Ct. 379, 175 L.Ed.2d 236 (2009).  Thus, harassment or discrimination based upon sexual orientation is not prohibited under either Title VII or Title IX.  Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir.2005); Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir.2000);  see also Swift v. Countrywide Home Loans, Inc., 770 F.Supp.2d 483, 488, 2011 WL 924010, at *3 (E.D.N.Y. Mar. 4, 2011) (holding that Title VII “provides no remedy for discrimination based upon sexual orientation”).

However in June 2012, Legal Clips summarized an administrative decision by EEOC in Macy v. Holder holding that an employee’s complaint of discrimination based on gender identity, change of sex, and/or transgender status is covered by Title VII as a claim based on sex. The EEOC concluded that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on … sex,’ and such discrimination therefore violates Title VII.” Though this matter was presented to the EEOC as a jurisdictional issue, the EEOC offered no position on whether unlawful discrimination occurred in this case.] 







Transgender student’s use of girls’ restroom sparks angry debate at Michigan district’s board meeting

According to the Daily Tribune, the Manchester Community Schools Board of Education was confronted with a roomful of angry parents at its recent board meeting over the question of which bathrooms a transgender student should use. Some parents claimed the transgender student’s use of the girls’ restroom was traumatizing for their daughters and amounted to an assault justifying a “911 call.”

Prior to the board meeting, Superintendent Cherie Vannatter said that the schools had received advice from a lawyer, and believed that allowing the transgender student to use the girls’ restroom was in conformance with their existing non-discrimination policy. Vanatter said she met with concerned parents two weeks ago and agreed to make staff restrooms available to any students who felt uncomfortable or threatened by the transgender student.

During the board meeting, several parents said that having their daughters use the staff restrooms could impose a hardship on them, and suggested that instead the transgender student should be the one to use the staff restroom. Several parents stated that while a single individual’s rights were being protected, “civil rights,” or the “right to privacy,” of other students were being ignored.

Board president, Marlene Wagner, who moderated the meeting, stated several times that the purpose of the public comment period was for the board to hear public statements, rather than to engage in debate. However, the audience was not pleased with the lack of response, and frequently interrupted Wagner with derisive laughter, under-the-breath comments, and shouts of “You don’t care,” “We’re not getting any answers,” and similar comments. Over the objection of Wagner, several participants insisted that board members state their individual views on the matter.

Some parents stated that if the policy is not changed, Manchester schools could lose students. “I can take my kids out of here,” one parent said. A few parents spoke in conciliatory tones expressing support or acceptance of the policy.

The question of transgender students’ rights has recently been in the news around the country. A transgender student in Maine was awarded $75,000 in damages after her school required her to use a staff restroom. Her lawsuit alleged that the school district violated the Maine Human Rights Act. Four Detroit-area schools are currently involved in a similar case.

Cooley Law School professor Sherry Batzer said there is no established case law on this matter in Michigan. Batzer said the matter was an equal protection issue, and has been recognized as such in a number of federal courts. She believes that Michigan courts would see it that way.

Source: Daily Tribune, 2/19/15, By Nathaniel Siddall

[Editor’s Note: As mentioned in the article above in December 2014, Legal Clips summarized an article in the Portland Press Herald reporting that Penobscot County Superior Court has ordered Orono school district to pay $75,000 to Gay and Lesbian Advocates and Defenders (GLAD) and attorney Berman Simmons, who represent transgender student Nicole Maines in her discrimination suit. The order, which was mutually agreed upon by the parties, prohibits the district from refusing to allow transgender students access to school restrooms that are consistent with their gender identity.

In January 2014, Legal Clips summarized an article in the Daily Press reporting that the American Civil Liberties Union of Virginia (ACLU-VA) had filed a complaint against Gloucester County Public Schools (GCPS) with the U.S. Department of Education (ED) and Justice (DOJ) on behalf of Gavin Grimm, a female to male transgender student at Gloucester High School. The complaint alleges that GCPS is discriminating against Grimm on the basis of sex because it has adopted a policy limiting the facilities available to transgender students.]

Virginia Senate approves bill that would allow home-schooled students to participate in public school sports and other extracurricular activities

The Richmond Times-Dispatch reports that the Virginia Senate, on a 22-13 vote, approved an amended version of House Bill 1626 that would give local school districts the option of allowing home-schooled students to participate in public school athletics and other school-sponsored activities. The legislation known as the “Tebow Bill”  is nicknamed for Tim Tebow, who was home-schooled before he became a Heisman Trophy-winning quarterback at the University of Florida.

The bill now heads back to the Virginia House, which is expected to approve it. Gov. Terry McAuliffe’s spokesman Brian Coy said, “The governor will review the legislation when it reaches his desk.” The bill’s sponsor, Del. Robert B. Bell, believes the legislation is about “opportunity,” referring to what he said are 32,000 home-schoolers across the state.

Opponents argue that the proposed law would effectively deny equal opportunity to those currently enrolled in public schools, potentially displacing public school students who are required to meet the eligibility rules of the Virginia High School League. “The end result still sets up two different standards for the eligibility of students who are going to compete against each other,” said Ken Tilley, executive director of the Virginia High School League. “It means that school divisions that want to say, ‘Our home-school students only have to pass one subject,’ they can do that,” he added. “While all other high schools will have to pass the VHSL standard, which is five subjects, they can set lesser standards scholastically for home-schooled students.”

Source: Richmond Times-Dispatch, 2/17/15, By Jim Nolan

[Editor’s Note: In November 2011, Legal Clips summarized an Associated Press article in the Virginian-Pilot reporting that a legislative subcommittee of the Virginia House of Delegates, which was formed  to examine whether home-schooled students should be allowed to participate in public school athletics, has declined to make any recommendations on the issue. The education subcommittee voted effectively to kill Del. Rob Bell’s bill that would have allowed home-schooled students to try out for public school sports teams. Bell’s bill, introduced in the 2011 General Assembly session, failed to clear the House education committee. 

In February 2013, Legal Clips summarized an article in the Smith Mountain Eagle reporting that the Virginia House of Delegates voted 56-43 to allow home-schooled students to play sports at local public schools. HB1442, known as the “Tebow” bill, would bar public schools from joining any organization governing interscholastic programs that would prevent various students from joining, including those who have been home-schooled. The bill does allow the students to be charged a fee for participation.] 

Parents’ suit claims Georgia elementary school allowing teacher led prayer

The Atlanta Journal-Constitution reports that the parents of two students at Swainsboro Primary School (SPS) have filed suit against Emanuel County (GA) school system, alleging that school officials are allowing teachers to lead daily prayers in the classroom. The parents, who are members of Freedom From Religion Foundation (FFRF), allege that their children are being proselytized and coerced by their teachers to participate in the prayers.

The suit, which identifies one of the children as Jesse Doe, claims “Jesse was pressured all semester long to pray.”  It also contends, “(His first-grade teacher) even held Jesse back from recess to explain her personal Christian beliefs at length, and said that Jesse’s mother was a bad person for not believing in God.” According to the suit, “At the end of the semester, Jesse began to join in the classroom prayers because of … continued coercion.”

The dispute began when the parents learned that group prayers were being led in their children’s kindergarten and first-grade classrooms in the primary school. The suit alleges that when the parents protested to SPS Principal Valorie Watson, the two teachers involved responded by telling the Doe children to sit in the hall during prayers.

According to the suit, one teacher announced to the entire kindergarten class that Jamie, the Does other child, was not allowed to pray to God and then told Jamie to wait in the hallway while the rest of the class prayed. The suit also alleges Jesse told his parents that his first-grade teacher “used her ‘mean voice’ when instructing him to wait in the hallway.”  In addition, it states the teacher also “told the class that Jesse cannot recite the Pledge of Allegiance with the rest of the class, since it contains the words ‘under God’ … which further stigmatized and singled out Jesse.”

Source: Atlanta Journal-Constitution, 2/11/15, By Steve Visser

[Editor’s Note: FFRF’s press release announcing filing of the suit in federal court states: “Encouraging the Doe children to pray, or isolating and punishing the Doe children for electing not to pray, violates the deeply and sincerely held moral convictions of the Doe children and therefore their First Amendment rights.”  FFRF’s legal complaint filed on behalf of the Does lays out a classic Lemon test violation of the Establishment Clause: (1) school’s policies, customs, and actions  have no legitimate secular purpose; (2) School’s policies, customs, and actions have the effect of advancing or endorsing religion in general over nonreligion; and (3) school and teacher’s  actions improperly entangle the state in religious rituals and beliefs.] 

Rejected University of Texas applicant petitions U.S. Supreme Court for a second time to strike down the University of Texas at Austin’s race-conscious admissions policy

Abigail Fisher, through her attorneys, has again filed a petition for certiorari asking the U.S. Supreme Court to review a U.S. Court of Appeals for the Fifth Circuit decision upholding the constitutionality of the University of Texas at Austin’s undergraduate admissions policy, says USA Today. Fisher’s latest petition repeats the same arguments that she made previously, namely that the policy’s use of race as a factor in making admissions decisions violates her equal protection rights under the Fourteenth Amendment.

In 2013, the U.S. Supreme Court sent her challenge back to the Fifth Circuit, so that the judges could more closely scrutinize the university’s policy. The Fifth Circuit once again upheld the school’s limited use of racial preferences.

Repeat performances on major issues have become standard fare at the court this year. The justices have granted new cases on same-sex marriage, voting rights, housing discrimination, lethal injections and President Obama’s health care law, among others. Fisher’s latest Supreme Court petition says, “The court should grant the petition, strike down UT’s unjustified use of race, and once again make clear that the Equal Protection Clause does not permit the use of racial preferences in admissions decisions where, as here, they are neither narrowly tailored nor necessary to meet a compelling, otherwise unsatisfied, educational interest.”

The justices last ruled on affirmative action in April 2014, when they upheld the right of states to ban racial preferences in university admissions. That 6-2 decision came in a case brought by Michigan, where a voter-approved initiative banning affirmative action had been tied up in court for a decade. Seven other states — California, Florida, Washington, Arizona, Nebraska, Oklahoma and New Hampshire — have similar bans. But the ruling did not jeopardize the wide use of racial preferences in many of the 42 states without bans, including Texas.

Source: USA Today, 2/11/15, By Richard Wolf

[Editor’s Note: In July 2014, Legal Clips summarized the Fifth Circuit’s panel decision in Fisher holding that the undergraduate admissions policy of the University of Texas at Austin (UT) does not violate the Fourteenth Amendment’s Equal Protection Clause. The Fifth Circuit panel majority, following the U.S. Supreme Court’s instructions, subjected UT’s admissions policy to a rigorous “strict scrutiny” analysis. In November 2014, Legal Clips summarized an article in The Texas Tribune reporting that  the full U.S. Court of Appeals for the Fifth Circuit  declined Fisher’s request to rehear her suit against the University of Texas at Austin (UT) over its use of race as a factor in the student admissions policy for applicants not admitted under the state’s top 10% law. The denial in effect upholds the July 2014 decision by a Fifth Circuit three-judge panel, which indicates that the policy passed constitutional muster.

In April 2014, Legal Clips summarized the decision by the U.S. Supreme Court in Schuette v. Coalition to Defend Affirmative Action that upheld the constitutionality of Michigan’s voter-approved ballot initiative that amended the state constitution to prohibit public colleges and universities from using race-conscious admissions policies. Reversing the en banc decision of the U.S. Court of Appeals for the Sixth Circuit that the state constitutional amendment violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, the six Justices agreed that the law passes constitutional muster.]

Florida district’s lawsuit accuses online retailer of violating district’s copyright by selling merchandise bearing the logos of district schools

According to the Miami Herald, Miami-Dade School Board has filed a copyright lawsuit against online retailer Prep Sportswear. This is the first lawsuit of its kind for the school district. The suit claims that Prep Sportswear is selling t-shirts, hoodies and other apparel online with the logos of some local schools. Booker T. Washington and Miami Central, both Miami-Dade high schools well-known for their athletic programs, are among the top sellers on the site.

Because of the national attention Miami-Dade high school football teams have been receiving, about two years ago the school board decided  to copyright school names, logos and mascots. Board member Raquel Regalado, formerly an intellectual property attorney, said: “It’s important for us to be diligent,” in protecting the district’s rights.

Source: Miami Herald, 2/11/15, By Christina Veiga

[Editor’s Note: Although the Miami Herald article refers to Miami-Dade’s suit as a copyright suit, most suits alleging infringement of a logo are brought as trademark violations. In October 2010, Legal Clips summarized an article in the Washington Post reporting that universities have increased their vigilance in protecting trademarked team logos and insignias  from infringement by high schools that use the designs. These logos have become more valuable in recent years because licensing for merchandise and apparel deals can be worth millions to a university or sports team. While there is no count of how many high schools have infringed on university trademarks, a casual look at any region’s high schools reveals a legion of miniature copycats, most visibly evident on the helmets of their football teams.] 


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