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The First Amendment The Giant Elephant in the
(School) RoomKelley Baker, Karen HaaseBobby Truhe
(402) [email protected] [email protected]@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 …”
The 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 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
Students’ 1st Amend. Rights
T-shirts, Bands, and More
Tinker v. Des Moines Comm Schs(US 1969)
Students decided to wear black armbands to protest the Vietnam War
Principals adopted a policy banning the wearing of armbands to school.
Students suspended ACLU Sued
Tinker v. Des Moines Comm Schs(US 1969)
Supreme Court: • Students do not “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 substantially interfere 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• 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 the 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
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 if they objected they
didn’t have to sing, but 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
Bullying and Cyberbullying
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 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’t 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 (5th Cir. 2011)
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 (5th Cir. 2011)
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 (5th Cir. 2011)
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 (5th Cir. 2011)
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
Observation of Holidays
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
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 BOE’s allocation of funds between academics and athletics.
BOE terminated the teacher, saying that the letter contained false statements that impugned the integrity of the school system.
The teacher sued, claiming BOE 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
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
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’ expresions of personal faith
Board Members’ First Amendment Rights
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
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 admins.• “shall be approved”
Roark v. South Iron R-1 Sch. Dist
Ct: injunction upheld• “District has for decades
impermissibly endorsed religion”•New policy did nothing to indicate
that distribution would stop Lesson: policy < practice
Good News Club v. Milford Cent.
Policy permitted all use except for religious
Parties agreed on “limited public forum”
Court: viewpoint discrimination Meetings held after hours, not
sponsored by school, open to all
Veterans’ Day Celebrations Often part of Americanism
Curriculum Often include prayer or references to
religion Captive audience / mandatory Likely violates Establishment Clause
The First Amendment The Giant Elephant in the
(School) RoomKelley Baker, Karen HaaseBobby Truhe
(402) [email protected] [email protected]@hslegalfirm.com
H & S School Law @KarenHaase @btruehe
