The First Amendment The Giant Elephant in the

(School) RoomKelley Baker, Karen HaaseBobby Truhe

(402) 434-3000kbaker@hslegalfirm.comkhaase@hslegalfirm.combtruhe@hslegalfirm.com

H & S School Law@KarenHaase @btruehe

Religion Clause Establishment Clause:

“Congress shall make no law respecting an establishment of religion…”

Free Exercise Clause: “… or prohibiting the free exercise thereof …”

Three-Pronged Lemon Test Purpose Prong: the public school’s action

must have a primary secular purpose Effect Prong: the primary or principal effect

of the public school’s action must be one that neither advances nor inhibits religion.

Entanglement Prong: the public school action must not result in an excessive entanglement of government with religion.

There is no “when in doubt” choice

Make the ACLU Happy: Exclude Religious Music

Make the Ministerial Alliance Happy: Focus on Religious Music

Keep you job: Defer to the Principal, Superintendent or School Board

Speech Clause Speech and Press

Clause: “Congress shall make no law . . . Abridging the freedom of speech or the press

Students’ 1st Amend. Rights

Students Right to PrayHypothetical:

• Before every school day starts one of the students asks to get on the PA and lead a prayer.

• Student promises to make prayer “nonsectarian, nonproselytizing”

• Principal suggests a moment of silence instead

Doe v. Santa Fe (U.S. 2000)

Student council elected a chaplain Chaplain prayed over the loud

speaker before all home football gamesOne Mormon and one Catholic

family filed suit After sued, school limited to

“nonsectarian nonproselytizing

Doe v. Santa Fe (U.S. 2000)

“on school property, at school-sponsored events, over the school's public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer" are not private, but public speech.”

Doe v. Santa Fe (U.S. 2000)

“Regardless of the listener's support for, or objection to, the message, an objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school's seal of approval.”

Nurre v. Whitehead Wind ensemble selected to play at

graduation• Students voted to play “Ave Maria”• Vote was unanimous• Superintendent vetoed

Member of wind ensemble sued Court:

• Music is speech• School censored• Censorship was permissible here (Lemon)

S.D. v. St. Johns Co. Sch. 3rd graders assigned to sing “In God

We Still Trust” at year-end assembly• Song played in class and practiced • Students told they didn’t have to sing

if they objected, but they wouldn’t be able to attend assembly

Parents sued Court: “Song fails to pass constitutional

muster under any of established tests”

S.D. v. St. Johns Co. Sch. School argued it was just like Doe v.

Duncanville Indep. Sch. Dist. (5th Cir. 1995)

Court: No• Age of students• 3rd grade music not elective• Choirs vs. classes• Quality of music

FCA, Pregame Prayers, etc.? All these activities must be student-led Teacher-sponsor must be “non-

participatory”• Can’t pray• Can’t organize• Can’t lead

But school must not hinder students’expressions of personal faith

Students’ Rights to Clothing

Hypothetical: students want to wear these bracelets

T-shirts, Bands, and More

Tinker v. Des Moines Comm Schs

United States Supreme Court, 1969 Students decided to wear black

armbands to protest the Vietnam War Principals adopted a policy banning

armbands at school. Students suspended ACLU Sued

Tinker v. Des Moines Supreme Court:

• Students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

• School would have to prove "facts which reasonably may have led school authorities to forecast substantial disruption of or material interference with school activities"

Tinker Standard“In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would materially and substantiallyinterfere with the requirements of appropriate discipline in the operation of the school, the prohibition cannot be sustained.”

“I ♥ Boobies” Bracelets B.H. v. Easton Area

• Free expression, not obscene or vulgar• No material and substantial disruption

J.A. v. Fort Wayne County• J.A.’s mom was breast cancer survivor• Frayser: “lewd, vulgar, obscene or

plainly offensive”• Tinker: disruption• “[F]ederal courts…side with admins.”

“I ♥ Boobies” Bracelets Court: defer to administrators who

know when speech is lewd, vulgar, obscene, or offensive based on the students involved Seniors vs. 7th graders Still look for material/substantial

disruption

Holloman v. Harland (11)• Tinker hypo: buttons which caused a

disruption at one school do not justify banning them at another school

• What if you’ve had a history of disruption involving a particular type of speech at your school?

Kuhr v. Millard P.S. (NE)• Julius Robinson murder• History of gang violence in MPS• Training• Students wore t-shirts and bands

Kuhr v. Millard P.S. (NE)

Kuhr v. Millard P.S. (NE)• Julius Robinson murder• History of gang violence in MPS• Training• Students wore t-shirts and bands• In Sept. teacher noticed shirts• School suspended students for

violating policy against wearing gang-related clothes

Kuhr v. Millard P.S. (NE)• Students sued under 1st Amendment• Court: “Schools may preemptively

discipline students . . . if they have information which would reasonably lead them to forecast that the speech will cause disruption.”

Kuhr v. Millard P.S. (NE)Court: Tinker “reasonably forecast”

• Specific and significant fear• Of disruption at school• More than remote apprehension or

disturbance• School must point to “well-

founded” expectation of disruption

Kuhr v. Millard P.S. (NE)Court will look at:

• What officials knew—facts, training, and application

• Basis of their knowledge• Severity of threat• Likelihood of actual

disruption

Interesting Cases• Dariano: May 5, HS students wear

American flag shirts with history of racial tension—school won

• Zamecnik: “Be Happy, Not Gay” shirt—student won

• Defoe: Confederate flag shirts considered “racially hostile speech”—school won

Skarin v. Woodbine Cmty Sch High School Choir sang Lord’s

Prayer at graduation Ct: “Whether recited or sung, prayer

by its very nature is undeniably a religious exercise”

Primary effect was to advance the Christian religion

Board Members’ First Amendment Rights

Board Members’ First Amendment Rights

Hypothetical: Board member wants to hand out candy to celebrate L. Ron Hubbard’s birthday• In the classroom• In the gym• On the sidewalk

Doe v. School Dist. of Norfolk

Norfolk graduation plans included invocation & benediction ACLU informed superintendent of

possible lawsuit Board agreed to remove the prayers

from the ceremony.

Doe v. School Dist. of Norfolk Board President told crowd prayer

would not be allowed Explained that ACLU had threatened

suit and apologized for change Later, gave microphone to board

member James Scheer who was allowed to address crowd because his child was graduating:

Doe v. School Dist. of NorfolkI promise to make this fairly short for me. There is a saying that when the door closes another one opens. We have been prohibited from doing some things at today’s ceremony and it’s brought me to a lot of reflections over the last couple of days. And when I have to reflect, I usually turn and ask for guidance. And one of the things that I usually do is to recite. So I am going to recite something, and I would ask and more so, encourage, any of you that this sounds familiar [sic] to please join in.

Doe v. School Dist. of Norfolk ACLU sued the school district,

Superintendent and Scheer School’s defense: No endorsement Nelson’s defense: surprise Scheer’s defense: speaking as private

individual

Doe v. School Dist. of Norfolk 8th Circuit: Defense wins Scheer had to meet two criteria to

speak• Member of board• Parent of graduate

Existence of second criterion made his speech not “school speech”

Doe v. School Dist. of Norfolk

“Because Scheer's remarks were not sponsored and did not bear the imprint of the state, we find that his recitation of the Lord's Prayer was constitutionally protected private speech.”

Doe v. School Dist. of Norfolk “Scheer undeniably took advantage

of his School Board membership to gain access to a forum in which he could espouse his personal views.” However, private speech is

constitutionally protected, even though it occurs at a school related function.”

Patrons’ 1st Amendment Rights

Good News Club v. Milford Cent.

Policy permitted all use except for religious Parties agreed on “limited public

forum” Court: viewpoint discriminationMeetings held after hours, not

sponsored by school, open to all

Roark v. South Iron R-1 Sch. Dist

Gideons distributed bibles to 5th grade students in class each year Parents sued School lost in district court, amended

policy• Required approval of adminstration• “shall be approved”

Roark v. South Iron R-1 Sch. Dist

Court: injunction upheld• “District has for decades

impermissibly endorsed religion”• New policy did nothing to indicate

that distribution would stop Lesson: policy < practice

Veterans’ Day CelebrationsOften part of Americanism

CurriculumOften include prayer or references to

religion Captive audience / mandatory Likely violates Establishment Clause

Observation of Holidays

Observation of Holidays Hypothetical: English teacher brings creche from

home and sets it up by her computer at Christmas

Superintendent tells teacher to take creche down

Superintendent brings creche and sets it up in the office

Stratechuk v. Bd. of Ed. Parents objected to

• “Christmas Sing Along • December Concerts

Board adopted policy prohibiting religious music

Parent sued Court:

• First Amendment does not compel school to include religious holiday music

• No record of hostility toward religion

Dominguez v. Grossmont Union Sch. Dist.

Student had conversion experience over Christmas break

Teacher directed him to stop bringing Bible to school and evangelizing

Seized Bible when he did not comply Told student he was violating

“separation of church and state:” Student suspended for 2 days

Dominguez v. Grossmont Union Sch. Dist.

Case filed March 24, 2011

Answer filed April 26, 2011

Case settled and dismissed May 6, 2011

Teachers’ 1st Amend. Rights

Teacher wrote letter to the editor, criticizing the board’s allocation of funds between academics and athletics.

Board terminated the teacher, saying that the letter contained false statements that impugned the integrity of the school system.

The teacher sued, claiming Board violated First Amendment right to free expression

Pickering v. Bd of Ed (US 1968)

Court: public schools cannot terminate a teacher for speaking out as a citizen on matters of public concern

Key Quote: “The problem in any case is to arrive at a balance between the interests of the [public employee], as citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

Pickering v. Bd of Ed.

Deputy district attorney spoke about an allegedly defective search warrant

Disciplined by employer, sued claiming violation of First Amendment

Court: if employees are engaged in speech “pursuant to their official duties” at work, they are not speaking as “citizens” and thus, enjoy no First Amendment protection for their speech.

Garcetti v. Ceballos (US 2006)

Tara Richerson was a mentor for beginning teachers

On her personal blog, she described one administrator as “a smug know-it-all creep” who has “a reputation of crapping on secretaries….”

Demoted by school, sued claiming violation of First Amendment

Richerson v. Beckon (9th Cir. 2009)

Court rejected her First Amendment argument

Found that her “nasty, personal comments” interfered with her job because they “fatally undermined her ability to enter into confidential and trusting mentor relationships” with beginning teachers

Richerson v. Beckon

Teacher engaged in conversations with students on MySpace

• Jokingly threatened student with lifelong detention for calling him “sir.”

• Teased a student about his girlfriend; student: “don’t be jealous cause you can’t get any lol:); teacher: “What makes you think I want any? I'm not jealous. I just like to have fun and goof on you guys. If you don't like it. Kiss my brass! LMAO.”

Spanierman v. Hughes (D. Ct. Conn. ‘08)

School district nonrenewed teacher’s contract

Teacher sued claiming violation of First Amendment

Federal district court granted the school’s motion for summary judgment

Spanierman v. Hughes

Teacher failed “to maintain a professional, respectful association with students”

Wrong for teacher to communicate with students “as if he were their peer, not their teacher”

Such conduct “could very well disrupt the learning atmosphere of a school”

Spanierman v. Hughes

Stacey the Drunken Pirate

Student teacher urged students to visit her MySpace Page

• comments criticizing her supervisor • photograph of her wearing a pirate hat

and drinking from a plastic cup with the caption “drunken pirate”

School refused to let her complete student teaching; she couldn’t graduate without student-teaching practicum

Snyder v. Millersville Univ. ( D. Ct. Penn. )

She first sued school; case dismissed Then sued university claiming violation

of First Amendment Court: No protection under Pickering

because postings dealt only with purely personal matters, not issues of public concern

Snyder v. Millersville Univ.

Social Media and Politics

Bullying and Cyberbullying

Cyberbullying of Staff

Cyberbullying of StaffHypothetical:

student takes picture of teacher’s rear end during class, posts to Facebook after class

J.S. v. Blue Mountain Sch. Dist. Middle School student made a fake

MySpace profile for principal• Included photo from school website• Initially public; then limited• Students could only access it off

campus• Student suspended for 10 days;

parents sued

Layshock v. Hermitage Sch. Dist

High School Student made fake MySpace profile for principal• Included photo from school website• Other students created similar and

more offensive profiles • Students only accessed it off campus• Student suspended for 10 days; placed

in alternate school, banned from extracurriculars and commencement

J.S. and Layshock Inconsistent Third Circuit granted en banc

rehearing Oral Argument June 3, 2010 Decision issued June 13, 2011 The Bottom Line? Schools lost both

cases

J.S. and Layshock Key legal points

• School maynot punish off-campus speech because it is vulgar, inappropriate or even criminal

• School may only punish off-campus speech that is substantially disruptive

What About the Staff?“We recognize that vulgar and offensive speech such as that employed in this case – even made in jest – could damage the careers of teachers and administrators and we conclude only that the punitive action taken by the school district violated the First Amendment free speech rights of JS.” Translation: “We don’t care”

When Students Are Victimized

T.K. v. New York Dept. of Ed. LD student was bullied by peers Court:

• No First Amendment protection for bullies

• “…merely requires schools do what the Department of Education has told them to do for years.”

J.C. v. Beverly Hills Sch Dist (CA)

8th grade girls talking smack about a peer

Uploaded it to YouTube Principal suspended the student who

uploaded Court: no disruption to school, no

nexus to education, no basis for punishment

Legal Test: If on campus:

• Is speech lewd, vulgar, socially inappropriate

• Does speech cause a “material and substantial disruption”?

• Is it a matter of public concern? If off campus:

• Does speech cause a material and substantial disruption?

K.A. v. Pocono Mtn. Sch. Dist.

Elementary student brought flyer inviting peers to Christmas party sponsored by her church.

Student had to turn the flyer into the principal for approval. He had the superintendent look at it, because he claimed it was religious in nature.

The superintendent rejected the request based on district policy

K.A. v. Pocono Mtn. Sch. Dist. Policy: "Any requests from civic

organizations or special interest groups...must be examined to insure that such activities promote student interests primarily, rather than the special interests of any particular group“• Prohibits speech that "seek(s) to

establish the supremacy of a particular religious denomination, sect or point of view."

K.A. v. Pocono Mtn. Sch. Dist. Plaintiff Student:

• flyer was prohibited "solely because of the religious nature of the message"

• school usually allows flyers and other invitations to be distributed

Defendant District: • District regulating “commercial

speech”• K.A. treated like any other student

K.A. v. Pocono Mtn. Sch. Dist. District Court (Decision 10/20/11)

• Forum Analysis vs. Student Expression• Case governed by Tinker • School’s fears re third party• Complete ban on any type of

“solicitation” also violates First Amend.

Morgan v. Swanson (5th Cir. 2011)

Students suing Plano, TX schools Alleged First Amendment Violations

• No Christmas parties allowed• References to Christian holidays banned• Cards to solders censored • Goodie bags searched and confiscated• Tickets to church play banned • Birthday treats censored• After-school distribution also prohibited

Morgan v. Swanson School’s Defense

• Constitution does not prohibit viewpoint discrimination against religious speech in elementary schools

• Qualified immunity• First Amendment is not implicated by

restrictions on student-to-student distribution of non-curricular materials by elementary school students to their classmates

Morgan v. Swanson District Court: no qualified immunity 5th Circuit: no qualified immunity

• No conclusion about truth of allegations• No conclusion about disruption • Only deciding whether elementary school

students have a First Amendment right to be free from religious-viewpoint discrimination while at school.

En banc rehearing granted, oral arguments held May 23, 2011

Morgan v. Swanson En banc Court: “Answering this question

requires recourse to a complicated body of law that seeks, often clumsily, to balance a number of competing First Amendment imperatives. This body of law failed to place the constitutionality of the defendants' conduct beyond debate, so they are entitled to qualified immunity.”• Court still held that principals' actions were

unconstitutional.

Morgan v. Swanson Holdings of the en banc Court:

• Tinker applies to elementary students• Schools may be allowed to discriminate

based on viewpoint when materials distributed in the classroom

• Still unclear whether schools can use entanglement concerns to justify discrimination

• Role of parents relevant

Teachers’ Religious Expression

Borden v. Sch. Dist. School policy prohibited coaches from

participating in student prayer Coach sued District Ct: nothing wrong with coach

participating so long has he did not lead Appellate Ct: no First Amend. right to

pray in employee’s role as a public employee

U.S. Supreme Court: denied certiorari

What to do?

What To Do? Walk the straight and narrow Seek qualified legal advice

• Not from board• Not from patron • Not from advocacy group• Not from law books• Not from your buddy• Don’t use common sense

What To Do? Protect students’ right to free expression Unless disruptive under Tinker

The First Amendment The Giant Elephant in the

(School) RoomKelley Baker, Karen HaaseBobby Truhe

(402) 434-3000kbaker@hslegalfirm.comkhaase@hslegalfirm.combtruhe@hslegalfirm.com

H & S School Law@KarenHaase @btruehe